How Does Spouse Abuse Affect Child Custody?
By Elizabeth Rayne, J.D.
Courts and parents alike want to keep children safe from harm. In determining the custody arrangement following a divorce, courts are primarily concerned with what is in the best interest of the child. As a result, a history of abuse by a parent, particularly if the history is documented, may be highly influential in the outcome of a custody case.
Custody determinations are governed by state law, which in many states prevents judges from awarding custody to a parent with a history of domestic violence. Generally, domestic violence includes acts against any member of the household, including children or the other parent. While some states prevent abusive parents from obtaining custody entirely, other states have only a presumption that the abusive parent should not have custody. In these states, the parent may overcome the presumption by showing that it would be in the best interest of the child for him to have custody, and that the children are not in danger.
Spousal abuse may affect a custody determination, but only if the court is convinced that the abuse actually occurred. Simply putting forth allegations of spousal abuse may not be enough to convince the court, as state law may require the judge to review documented proof before denying custody based on domestic violence. Relevant and convincing evidence may include police reports, hospital records, pictures of injuries, and testimony from witnesses. Further, you may show school records or testimony from school counselors to demonstrate how the abuse is having a negative impact on your child.
Effect on Custody Determinations
The custody determination by the court will be based on what is in the best interest of the child. If the court finds that the history of spousal abuse puts the children in danger, or is otherwise not in the best interest of the children, then the court may award sole custody to the other parent. Although the court may award visitation to the abusive parent, it may be supervised. In rare cases of extreme domestic violence, the court may not award visitation at all. Further, in any case where visitation is allowed, the court may take steps to ensure there is minimal contact between the parents, and that dropping off the children takes place in safe areas, such as a police station.
Some states may allow parents to modify custody orders after the abusive parent has taken steps to rehabilitate himself. For example, the parent may be required to complete substance abuse treatment programs, anger management counseling, or other parenting educational programs. After completing voluntary or court-ordered programs, the court may allow the parent to have unsupervised visitation. However, completing rehabilitative programs may not lead to modification of custodial parent determination, unless the other parent also has a history of domestic abuse. When both parents have a similarly violent history, the court may award custody to whichever parent completes a rehabilitative program and is least likely to continue committing domestic violence, or in some cases, to a third party who may be more suitable to take care of the children.
- Alaska Court System: FAQs For Parents: How Domestic Violence Can Impact Custody Decisions
- Ohio Legal Services: Domestic Violence and Children
- Farzad and Mazarei: What Effect Does A Finding of Domestic Violence Have on an Orange County Child Custody Case?
- Legal Momentum: Domestic Violence and Child Custody
Elizabeth Rayne earned her J.D. from Penn State University and has been practicing law since 2009, advising clients on issues ranging from employment law to nonprofit management. For two years, she served as a contributing editor for the "Vermont Environmental Monitor."