Public Awareness

OPDV Bulletin:
Legal News: The Nicholson Case


There is a current legal matter with important implications for agencies working in the fields of domestic violence and child welfare. On March 5, 2002, the New York Law Journal announced the release of Judge Weinstein’s 183-page memorandum, which passionately reinforced the decision he made last December in this landmark case. The following is an overview of the case, reprinted and adapted from 'News Flash' (http://www.fvpf.org/newsflash) an online newsletter of the Family Violence Prevention Fund.


New York City Lawsuit Resolved<
February 12, 2002

On December 21, in a ruling that was widely expected and is being appealed, Federal Judge Jack B. Weinstein found that New York City’s Administration for Children’s Services (ACS) has been violating the constitutional rights of mothers and their children by removing children from their homes simply because their mothers are victims of domestic violence. In Nicholson v. Scoppetta — a federal class action lawsuit brought by a group of battered women — Judge Weinstein issued an injunction ordering ACS to stop this practice.

The injunction is similar to a draft that Judge Weinstein circulated for comment in November. Although it acknowledges improvements in ACS policies, it orders ACS to stop separating battered women from their children and to adopt new policies and practices to further improve the agency’s response to families experiencing domestic violence. The injunction grants ACS a six-month stay to give the agency time to adjust its practices to comply, as well as “the opportunity to implement further changes that secure and protect plaintiffs’ constitutional rights without unnecessary interference by the court.”


Judge Weinstein issued the injunction last month. He is expected to issue an “extensive explanatory” memo soon to further clarify his decision. ACS has appealed the ruling.


Preliminary Injunction

The case addresses an issue that child welfare and domestic violence advocates across the country are facing –– how to work together more effectively to help families experiencing violence. The New York City case is the first of its kind. But Zuccardy says that it has drawn a response from advocates around the country. Representatives from battered women’s advocacy groups, child welfare agencies and other organizations have contacted Zuccardy [Jill Zuccardy of Sanctuary for Families, one of the attorneys who represented the class of battered women in the case] for information about the case and for copies of Judge Weinstein’s injunction.


Judge Weinstein issued the injunction to ensure that “battered mothers who are fit to retain custody of their children do not face prosecution or the removal of their children solely because the mothers are battered.” The injunction focuses on the ACS practice of removing children from their mothers who are victims of domestic violence for the reason that the mothers ‘engaged in’ domestic violence by being victims and allowing their children to witness the abuse. The injunction finds the practice to be unconstitutional. “Practices and policies of ACS violate the constitutional rights of both mothers and children……parents and children have a constitutional right not to be separated by the government unless the parent is unfit to care for the child……the evidence to date overwhelmingly demonstrates that the defendants have violated these constitutional rights,” it states.


The injunction holds that the “government may not penalize a mother, not otherwise unfit, who is battered by her partner, by separating her from her children; nor may children be separated from the mother, in effect visiting upon them the sins of their mother’s batterer.”


It orders ACS to immediately stop removing children from their mothers without a court order “solely because the mother is the victim of domestic violence except in cases where the child is in such imminent danger.” The injunction also includes detailed and specific instructions for ACS to improve its response to families experiencing domestic violence. Among other things, the preliminary injunction calls on ACS to:


  • Make “every reasonable effort” to separate a batterer from his victim and her children, and provide them with “reasonably adequate protection.” This includes helping the family find a shelter or other safe haven and obtain a protective order against the batterer.
  • Inform mothers of their rights and those of their children before taking any action to separate children from mothers who are victims of abuse. This includes developing a pamphlet explaining these rights in English and Spanish.
  • Implement a training and supervision program to inform ACS employees and contractors of the provisions in the injunction and prepare them to implement the changes it outlines.
  • Include a domestic violence specialist in each clinical consultant team ACS establishes.
  • Establish a five-person Review Committee to “assist in the enforcement of and compliance with” the terms of the injunction. The Committee will include representatives from New York City and New York State, and from plaintiff groups in the lawsuit.
  • Report to the court once a month. Copies of the reports will be distributed to parties in the lawsuit, and others.