How Domestic Violence Factors into Child Custody Decisions

Domestic violence allegations by a spouse or co-parent are very serious and do have a significant impact on future custody orders. Allegations of domestic violence are always relevant in child custody proceedings, especially when the violence is directed towards or occurs in the presence of minor children. Because domestic violence has been deemed a national problem, some states have begun to enact statutes creating “domestic violence presumptions”. The legal presumption is essentially that an abuser’s actions and future potential actions would be harmful to the child. Depending on your jurisdiction, the domestic violence presumption could result in no access or limited access to your child if your spouse proves you have engaged in a history of domestic violence. Once a presumption is established, it will affect child custody arrangements, regardless of the type of proceeding, (i.e. a divorce, a suit affecting a parent child relationship, or a suit for grand-parent access).

Even though your state’s laws may provide for a legal presumption against you, most will also include provisions to rebut the presumption. Rebutting the presumption means that you are allowed to present evidence showing what you have done to change a pattern of domestic violence and why you are no longer a threat to the safety or well-being of your child. This evidence can include:

  • completion of an anger management course
  • completion of a batterer’s treatment course
  • completion of a drug/alcohol treatment program
  • negative test for drugs/alcohol
  • finding that custody with the parent with a DV history is in the best interest of the child
  • participation in a parenting education course

If your state does not have a domestic violence presumption built into a statute, domestic violence will still impact child custody decisions through moral presumptions. Many judges are reluctant to give violent parents full or un-limited access to a child who has been the victim of domestic violence. Basically, an established history of domestic violence creates a “moral presumption” that an abuser should not be the primary care-giver of a child. Even when the violence is not directed toward the child, but merely occurs in the presence of the child, courts still exercise extreme caution because of concerns that children who witness abuse grow up to be abusers themselves.

Domestic violence can also effect the child custody determination of victims of domestic violence. For example, you divorced your spouse two years ago and have since found a new boyfriend. You decide to allow your boyfriend to move in with you and your two children. Within the first month, his temper flares and he begins abusing you in front of your children. You’re the victim, but you’re also the parent. If your ex-spouse becomes aware that you are allowing your boyfriend to remain in the home and engage in violent behavior in front of your children, he could petition the court obtain full custody of your children on the basis that you are not capable of protecting them from third parties.

While domestic violence is a serious issue, some parents do fabricate domestic violence allegations to gain an advantage in a divorce or child custody proceeding. In these situations, it is not uncommon for one parent to seek a temporary restraining order on the basis of domestic violence. Temporary restraining orders usually require much shorter notice than regular custody orders. Because of the short notice, the responding parent may not have sufficient notice to appear and defend the allegations. The parent is then awarded a default order because the responding parent failed to appear and contest the allegations. Given the strong presumption against granting joint child custody to a parent with an established history of domestic violence, it is very important that any accused parent contest such allegations.

Regardless of whether your state has adopted legal domestic violence presumptions, domestic abuse will affect a child custody dispute. A confirmed history of domestic violence creates a strong presumption in child custody cases against an abusive parent. If you are accused of domestic violence, it is critical that you retain a qualified family law attorney, and potentially a criminal law, to contest the allegations. Failure to contest the allegations will leave the court with no other choice but to accept that the allegations are true and to impose domestic violence presumptions against you in your child custody case.