CHILD CUSTODY ISSUES
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:
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).