SJ Quinney College of Law, University of Utah
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Authors

Courtney Cross

Abstract

How a domestic violence survivor responds to the abuse she is experiencing depends on many factors. Some critical considerations include her access to resources, desire to stay in her relationship, and assessment of her own safety. Criminal and civil court systems place enormous pressure on survivors to separate from their abusive partners. Not only are survivors with children pressured to leave, they are punished when they stay. That punishment can come in any combination of diminished custody rights, limited parental rights, and incarceration. Yet a survivor who flees with her children is not immune to these same consequences: if she leaves in a manner that is not state sanctioned, she may be punished criminally or civilly for kidnapping her children, regardless of the violence she was experiencing at home.

Criminal parental kidnapping charges can cost a survivor her liberty, safety, and relationship with her children. While some state statutes attempt to address the potential for flight from domestic violence, many do not acknowledge the intersection between parental kidnapping and domestic violence at all and none provide sufficient safeguards for battered parents. Survivors are caught in a double bind in which the state can both pressure them to leave abusive relationships and also punish them for the manner in which they do so. A survivor who does not incur criminal parental kidnapping charges may still be negatively impacted by her decision to leave in both the child welfare system and domestic relations court.

Large scale systemic change is necessary to truly enhance survivors’ independence. In addition to amending parental kidnapping laws to adequately anticipate and respond to safety seeking defendants, individual attorneys and the larger domestic violence movement must become more willing and better prepared to advocate for all survivors across and outside of the legal system.

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