Tipping the Balance in Favor of Justice: Due Process and the Thirteenth and Nineteenth Amendments in Child Removal from Battered Mothers

I. INTRODUCTION After Sharwline Nicholson was assaulted by her boyfriend for the first time, the Administration for Child Services ("ACS") of New York took her children without a court proceeding and temporarily placed them with foster parents. This action was particularly surprising because the children had not been abused by either their father or their mother.1 Without determining who was at fault, ACS concluded that Nicholson was unfit to parent because she had "engage[d] in acts of domestic violence," even though she had not assaulted her children or her boyfriend but was only assaulted herself.2 ACS took Nicholson's children from her and charged her with neglect simply because her children witnessed abuse against her.3 Nicholson's experience was not unique, as she represented a class of mothers who had children removed under similar circumstances. In what has already been called a "landmark" ruling,4 Nicholson v. Williams held that the ACS policy violated abused mothers' substantive due process rights by taking away their children "solely because the mother[s] [had] been abused."5 Judge Weinstein held IMAGE FORMULA4 that the city violated substantive due process by infringing on the fundamental right to parent and be raised by parents without a showing of a substantial state interest.6 In addition to finding a Fourteenth Amendment substantive due process violation against the city, the court suggested that the Thirteenth7 and Nineteenth8 Amendments should be "added" to this Fourteenth Amendment analysis.9 The court stated that "mothers are entitled to a particularly scrupulous protection of their rights to custody of their children in construing the Fourteenth Amendment in light of the ... Thirteenth and Nineteenth [Amendments]."10 The Nicholson court also observed that "[t]he law cannot ignore the profound sexual connotations of the Thirteenth Amendment" and that the "exact language of the Thirteenth Amendment could be construed to cover children forcibly and unnecessarily removed without due process . ..."11 Additionally, the court found that the Nineteenth Amendment "bears on the [substantive due process] analysis ... particularly in the context of domestic abuse ... [since it] was designed to put females on the same legal constitutional plane as males."12 While noting that the Thirteenth and Nineteenth Amendments could aid a Fourteenth Amendment analysis, the Nicholson court did not adequately articulate the precise impact either of the amendments could have on the substantive due process analysis or how this analysis would impact a future battered mother's substantive due process claim. Although existing case law and commentary discuss substantive due process in the context of child IMAGE FORMULA6 custody,13 there have been no prior attempts in the literature to articulate the connection between the Thirteenth and Nineteenth Amendments and a Fourteenth Amendment substantive due process analysis.14 Furthermore, prior to Judge Weinstein in Nicholson, no commentator has argued that the Thirteenth and Nineteenth Amendments should be combined in the context of domestic violence.15 This Comment builds on earlier writings by arguing that IMAGE FORMULA8 the Thirteenth Amendment's prohibition of slavery-like treatment and the Nineteenth Amendment's guarantee of autonomy bolster a battered mother's Fourteenth Amendment substantive due process claim when her children have been taken from her solely because she was abused. The Thirteenth and Nineteenth Amendments bolster a battered mother's claim by recognizing the additional guarantees of autonomy under the Nineteenth Amendment16 and freedom from slavery-like conditions under the Thirteenth Amendment within the scope of her substantive due process rights.17 Part II of this Comment describes the complex nature of a battering relationship and illustrates how state reactions may wrongfully punish and blame a victim for an abuser's actions. …