Divorce and Separation

Domestic Violence: Child Custody and Family Law

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Domestic violence can have devastating effects on children. Batterers often use children to manipulate their partners. While the relationship continues, batterers may threaten to take custody of, kidnap or harm the children if the victim reports the abuse. After a battered woman leaves a relationship, batterers may use child custody disputes, visitation and joint custody arrangements as opportunities to threaten, intimidate, coerce and harm their former partners. From Kendall Segel-Evans, Wife Abuse and Child Custody and Visitation by the Abuser (1989).

For a long time, domestic violence was not considered relevant to custody and visitation determinations. As explained in more detail in the Toolkit to End Violence Against Women, created by the National Advisory Council on Violence Against Women and the United States Department of Justice’s Violence Against Women Office, available in PDF and text formats, judges making custody determinations “routinely concluded that violence toward the other parent had nothing to do with one’s ability to adequately parent, and most court decisions revealed that judges did not believe that domestic or sexual abuse of one parent by the other fundamentally compromised the interests of the children.”

As the Toolkit explains further, because of the ways in which batterers can use child custody and visitation against their former partners, however, advocates argued that the laws governing custody and visitation determinations must account for the power and control dynamics in an abusive relationship. Some jurisdictions now require the judge to consider domestic violence in making a custody award. Others create a presumption against an award of custody to the abusive parent, or prohibit an award of joint custody to an abusive parent. Yet others require the judge to find that the batterer does not pose a threat of harm to the child before awarding that parent visitation rights. Other laws recognize that visitation may provide a batterer with an opportunity to harm his former partner or his children, and require supervised visitation in the presence of a third party.

In considering these issues in a custody context, judges, advocates and lawyers alike must be aware of the fact that abusers will seek to minimize their violent and abusive behavior by denying the abuse happened or claiming that the violence was mutual. Women’s use of violence in an abusive relationship, however, differs considerably from men’s use of violence and is often precipitated by severe attacks by their partners.

As the Toolkit explains further, however, despite the passage of laws requiring courts to factor domestic violence offenses into custody and visitation determinations, much remains to be done. Courts remain reluctant to issue custody and visitation orders that “construct clear protective provisions for abused parents and children, limit abuser access to the children, and permit abused parents to make independent decisions about child rearing.” In the interests of ensuring that batterers continue to have access to their children, courts often refuse to let battered women and their children move further away from the batterer.

Advocates can work for the passage of new or the revision of existing custody and visitation laws; in addition, they may be able to argue for interpretations of existing laws that provide additional protection for women during these kinds of proceedings. The Toolkit, available in PDF and text formats, offers additional concrete strategies for advocates, judges and lawyers.

In particular, the Toolkit offers strong challenges to arguments that an abuser’s violent behavior towards his partner is not relevant to his fitness as a parent. These include:

  • Can a person be a good parent if he instills profound fear in his children—fear for themselves and fear for their mother?
  • Can a parent who engages in violent criminal behavior be a good parent?
  • Can a person be a good parent if he denies his abusive behavior and blames the other parent or the children?
  • Can a person who lacks the capacity to place the needs of the children above his own be a good parent?
  • Can a person who jeopardizes the health and well-being of his children and their mother be a good parent?

The American Law Institute has recently published guidelines for child custody determinations that incorporate domestic violence concerns. The guidelines require courts to screen for domestic violence, and provide that an abuser will not be awarded custody unless he can prove he is not a danger to the child or the mother. When domestic violence is an issue, custody negotiations between the parents can be conducted through third-party mediators instead of in face-to-face sessions. From Stephanie B. Goldberg, New Guidelines Issued for Granting Child Custody, Women’s Enews (Dec. 17, 2002).

For women who wish to escape from domestic violence, separation and divorce are often the best options. However, separating from their batterers can put women at increased risk and implicates a variety of child custody issues. Because of the ways in which batterers can use child custody and visitation against their former partners, it is critical that the laws that govern child custody determinations, laws most often invoked during divorce, further the safety of both the child and the non-abusive parent.

Acting quickly is important in these situations, and consulting with an attorney can help to think rationally about different options. Many attorneys offer free consultations and the process is confidential, though if you or your child is at immediate risk of harm, it is important to consult with an attorney in a way that minimizes the risk of the batterer finding out. It is not uncommon for phones or computers to have tracking software installed, and making contact via a separate device can be helpful. Make immediate safety the primary priority in these situations and look into resources or shelters in your area. The legal process can move relatively quickly in emergency situations such as these, however sometimes that is still not fast enough, and while there are often legal remedies after the fact, it doesn’t fix damage that has already been done. 

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Mr. Hutton is a Divorce and Custody Lawyer based out of Round Rock, TX. His background is with child psychology at Arizona State University where he received a B.S. in 2006, and he continued this by working with the Children’s Right’s Clinic at the University of Texas School of Law where he received his J.D. in 2009. Throughout his practice, he has been a strong proponent of utilizing modern technology to improve his practice and the representation of his clients. He currently is the technology chair of CAFA of Travis County and is committed to improving and modernizing the practice of law in Texas.

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