If passed, the law would be first of its kind in the nation.
A bill in Maryland aims to protect domestic abuse survivors from being charged with neglect for their child’s exposure to the abuse. If it passes, Maryland would be the first state to enshrine this protection into law.
House Bill 324 would create a “rebuttable presumption” — meaning an idea that is assumed to be true absent contrary evidence — that it is not neglect for an abuse survivor to stay in a relationship with an abusive partner, continue to live with them, or choose not to report them to the police or seek a restraining order.
The bill would prevent a child welfare court from giving any weight to an abuse survivor’s failure to prevent a child’s exposure to domestic violence through those actions when considering whether a child requires protective intervention.
Shanta Trivedi, an assistant law professor at the University of Baltimore, said it is “crucial” to protect abuse survivors from being deemed neglectful for failing to leave or report an abusive partner, pointing to the danger — both interpersonal and systemic — that doing so might cause for her and her family.
“The reasons that survivors may not take these actions are extremely complex ranging from having nowhere to go, fear of immigration consequences, mistrust of the police or because they know that taking one of these actions may make them less safe,” said Trivedi, who is the faculty director at the Sayra and Neil Meyerhoff Center for Families, Children and the Courts.
Research has shown that exposure to domestic violence can — but does not always — have negative impacts on a child’s development and capacity to regulate emotions. A child’s protective factors, including their relationship with the non-offending parent, play a large role in determining their resiliency to the exposure.
“This bill is important because while no one believes that witnessing violence is ideal for children, studies show that the best way to mitigate any trauma related to exposure to DV is to maintain the child’s relationship with their protective parent,” Trivedi said. “Taking this punitive approach with mothers who are only guilty of being in the unfortunate position of experiencing violence is bad enough but doing so when it isn’t even what’s best for kids is absurd.”
If passed, the bill could have far-reaching impact. Domestic violence is a factor in roughly one in five substantiated cases of abuse and neglect, according to a 2019 study in the Children and Youth Services Review.
Without explicit federal policies dictating how domestic violence should be addressed in child welfare cases, states vary on how — and who — they penalize. In some child welfare systems, a child hearing or seeing abuse take place can be deemed abuse or neglect. Other states have set a threshold of children being harmed or at risk of harm by their proximity to domestic violence. Under such policies, the parent experiencing the abuse can be charged with “failure to protect” the children from the abusive partner.
For most states using the “harm or risk of harm” threshold, that can mean emotional or physical harm. Currently, Maryland is one of four states that only considers physical harm or the risk of it to meet the definition, along with Idaho, Tennessee and Vermont.
A class-action lawsuit in New York led to the requirement there that agencies prove a child was actually harmed as a result of their exposure to domestic violence in order to hold the abuse survivor culpable for neglect.
Roughly half of state-run child welfare systems direct child welfare workers to identify an aggressor and a non-offending caregiver in domestic violence situations, according to a 2021 study published in the journal Child Maltreatment. But only 15 state-run systems have policies that explicitly protect the non-offending caregiver from an abuse or neglect allegation stemming from the interpartner violence they’ve endured.
Of those that protect non-offending partners, only four extend blanket protections from abuse or neglect findings, including Iowa and Oregon, whose manuals both explicitly state that domestic violence victims should not be subject to abuse or neglect charges for failure to protect children from exposure. Oregon’s manual goes a step further, suggesting that choosing to stay with an abusive partner could be construed as a protective action.
HB 324 is still in the early stages of the legislative process, having been through one committee hearing but no votes. Those interested in the discussion can watch the hearing on the Judiciary Committee’s YouTube.