Domestic Violence and Child Custody: Protecting the Best Interest of the Child

by Helen Rubenstein

In the work that I do here at The Advocates, I often think about how hard it must be for the women who are trying to get out of an abusive relationship to put their children’s welfare in the hands of the court. These brave women have reason to worry, because when child custody disputes collide with a history of domestic violence, children are likely to get hurt.

Not only are children harmed by witnessing domestic violence, men who assault their partners parent differently even when they do not abuse their children. They are less involved with their children than other fathers, and they use negative parenting methods such as spanking, anger and shaming. They tend to undermine the other parent’s authority and are generally poor role models for developing healthy relationships and conflict resolution.

Yet, when couples divorce, abusive parents often use custody proceedings as a way to continue a campaign of control and coercion against the former spouse. Studies show that 25 to 50 percent of disputed custody cases involve domestic violence and that batterers are more likely to seek sole custody than non-abusive fathers. Shockingly, they are just as likely as non-abusive fathers to receive custody.

Against this disturbing background of batterers requesting and receiving custody of their children, another disturbing trend is a presumption of joint physical custody (JPC). The danger of presumptive JPC is the belief that “shared parenting” is good for all children. It places the rights of parents, even abusive parents, above the safety and well-being of children. Most states require the court to consider domestic violence in making custody awards and the laws of 22 states, plus the District of Columbia, have presumptions against joint custody in cases where domestic violence has occurred. Still, courts often fail to identify and consider violence in custody decisions, even when there is a history of substantial domestic abuse. A presumption of JPC creates additional obstacles to making sure that custody goes to the non-violent parent.

This trend toward JPC is reflected in the laws of numerous states and elsewhere in the world. In 2012 the Minnesota legislature passed a law establishing a presumption of JPC, but that legislation was vetoed by the governor. A similar law will likely be reintroduced in the legislature. Australia amended its Family Law Act in 2006 to create a presumption of JPC. Even though the law included an exception for child abuse or family violence, several reports identified significant problems in the legal system’s response to domestic violence. In response to these reports, the government passed new amendments to the Family Law Act in 2011 giving priority to a child’s safety in determining the best interests of the child, and making it easier to bring allegations of family violence and sexual abuse before the court. A recently passed family law in British Columbia, Canada provides an example of legislation that places the safety and best interests of the child first when couples separate or divorce. The act makes the best interests of the child the only consideration in deciding issues related to the child.

To learn more about domestic violence, including the relationship between domestic violence and child custody, please visit http://www.stopvaw.org.

What do you think about the presumption of joint physical custody?

By Helen Rubenstein
Staff Attorney, Women’s Human Rights Program
hrubenstein@advrights.org