Domestic Violence in Family Law | Abuse in Custody Cases

For parents and children who have suffered domestic violence or other abuse, custody determinations are especially important.

Can an abusive father get custody? Or an abusive mother?

Yes, it's possible. But it's rare when it has been proven in court that they abused the child in question or another child.

Custody decisions are based on the child's best interests. If a judge decides there's risk of abuse, they will probably give the other parent sole legal and sole physical custody. The abusive parent will usually keep the right to see the child, but they may be limited to supervised visitation.

If the abuse charges are criminal: There may be a trial in criminal court. Usually, even if they're convicted, they remain a legal parent. That means they have the right to seek custody and visitation, though they might not receive it. In rare circumstances, their parental rights may be terminated.

In family court: Family courts take abuse allegations seriously, although they want a child to maintain a relationship with both parents if at all possible. While a local judge may have personal assumptions or values about the role of mothers and fathers, family law in most places prohibits gender bias toward either mothers or fathers.

Can a parent lose custody for verbal abuse?

Yes. Judges consider how parents communicate with each other and with their child. Disproportionate anger (for example, screaming over groceries) or inappropriate expression (for example, swearing at a toddler) can count against a parent.

Judges also consider what a parent tells their child about the other parent. Don't tell your child that their other parent doesn't love them or want them; don't characterize your child's other parent as irresponsible or worthless. It may not be considered abuse, but it's not healthy or fair to the child. It may be considered parental alienation.

For domestic violence victims, losing custody can be a fear

Victims of abuse have suffered trauma and may be anxious about all sorts of things. One common fear is losing custody. As a victim, you may worry, for example, that the judge will look down on you because your housing situation is unstable, or that the judge will be more impressed by your abuser's lawyer.

To reassure yourself, remember that courts want to protect children as well as adults from abuse. You will get a hearing. Help the court help you.

Maintain your focus on your child's well-being:

• Truthfully document what happened. (Keep a journal.)
• Don't make things worse by escalating drama or dragging out conflict.
• Communicate politely, and demand the same. (Message the other parent with a hostility monitor.)
• Listen to trusted family and friends.
• Seek and accept help from professionals.
• Propose what you'd like to happen next. (Draft a parenting plan and a schedule.)

What not to expect from family court

Emotional support. You don't need to seek this from a judge, and you shouldn't try. The judge can't validate your life choices, your worth as a person, whether you deserve a great relationship or whether you're "right." Ask your family and friends for this kind of support.

Vindication. Some divorcing spouses dream of a moment in which a judge recognizes they were wronged. But no-fault divorces end the marriage too and usually can be issued more quickly. Again, your family and friends can form their own opinions about who was at fault in this marriage, so the legal "fault" designation (if it's even available in your area) may not matter.

What you will get from family court

If one of you seeks a divorce, and if all of the court's requirements for divorce are fulfilled, a judge will end your marriage.

Married or not, a judge will determine custody and visitation to support you and your child's safety and well-being. You can get temporary, emergency and final custody orders. Each local court custody process is different.

Proving domestic violence in family court

A parent won't automatically lose custody just because they've been accused of abuse. The accuser must provide some kind of proof.

Evidence of abuse, for example, could be:

• A criminal conviction related to the abuse
• A threatening text message
• A doctor's report of a bruise

Here are the stages of a custody case in which you may need to present evidence of domestic violence.

Protective orders or restraining orders

If you accuse a partner of abuse, local authorities (police or a judge) may issue an immediate order that forbids your partner to contact you.

It may be called a restraining order, domestic violence protection order or something similar.

If you live in the U.S., consult Justia's list of restraining order laws and forms for each state.

Emergency custody orders

At any time, if you have a true emergency, you can get a rapid hearing and a judge's response — often within a couple weeks, depending on local process. An emergency custody order is meant to keep you and your child safe while you wait for a more thorough hearing.

Temporary custody orders

A court may issue a temporary custody order to help create safety and stability for the child. In some courts, this is a routine part of the process; other courts might issue a temporary order only in special circumstances (like when parents have trouble cooperating during litigation and need the court to tell them what to do).

Both parents have to follow the order. It may last several months or even a year, depending on the situation.

Final custody orders

A few days before trial (sometimes called a final hearing), both sides provide their evidence to the family court.

Parents also have to tell the court in advance who they'll call as witnesses. This could be any adult familiar with the child's situation, e.g., family, friends, neighbors or child care providers.

A final order replaces any previous order. Parents have to follow it until the child grows up (usually age 18 or high school graduation). However, if the order isn't working, either parent may seek a modification.

Professionals who help with domestic violence in family law

It's always OK to ask for help. You and your child deserve to live in safety. Even if you feel you've failed before or that others have failed you, keep reaching out.

Keep in mind that certain professionals may be required to inform authorities if they suspect abuse, especially of a child. This is called their duty to report.

Lawyers

Family lawyers have specialties. Hire someone with experience relevant to your situation. For example:

• If the other parent is a narcissist, it can help to hire a lawyer who's aware of this personality type and can anticipate and fend off your ex's manipulation.
• If you or your ex has a relevant disability, mental illness or substance addiction, seek a lawyer who specializes in that area.
• If you're moving into a shelter for victims of domestic violence, your lawyer should take extra care with your privacy. The shelter may recommend a lawyer they trust.

Custody evaluators and guardians ad litem

Sometimes the court orders a custody evaluation, in response to a parent's request or because the judge believes it's necessary. An evaluator interviews family members. Parents usually have to pay, and the cost varies widely. In some states, you can go ahead and hire an evaluator without being court-ordered to do so, and the court will listen to their findings.

The role of a guardian ad litem is to advocate for the best interests of the child. Similar to an evaluator, they investigate the child's situation.

Mediators

Alternative dispute resolution methods are ways for people to reach agreement. In family cases, the most common method you'll hear of is mediation. A mediator helps two parents in conflict to reach agreement on specific issues. For example, a mediator could hear out your schedules prepared for mediation and suggest a compromise.

Most courts won't force parents to try mediation if they know the relationship has involved abuse. (Make sure the court is aware.) If you still want to try mediation, you may be allowed to do so without sitting in the same room as the other parent. You could sit in separate rooms or meet virtually.

Sometimes, it just isn't possible to reach a mediated agreement. The other parent may not deserve your trust. Don't blame yourself.

But in some relationships, both parents are able to communicate with honesty and fairness. If both of you consent to try mediation and you negotiate in good faith, you may find it's productive.

Expert witnesses

If you go to trial, an expert witness may be called to explain relevant issues, such as a medical diagnosis or the type of abuse that's being alleged. The law in Colorado and in Utah requires expert witnesses who give opinions about abuse or trauma to have training and experience with abuse victims.

Similarly, in Louisiana, the court may order a parent to undergo a mental health evaluation, and the evaluator serves as a witness. A Louisiana court must choose an evaluator who is experienced working with perpetrators of violence if domestic abuse has been an issue in the case.

Planning for a custody case

If the other parent has been abusive and you're planning for a court case, you might gather as evidence:

• A parenting journal to document important developments
• A proposed parenting plan for your child to keep them safe
• A proposed parenting time schedule, potentially limited to supervised visits
• A printout of messages exchanged with your ex, highlighting hostile language

The Custody X Change online app lets you create all of these in one place. It makes sure you're ready to take on the court process step-by-step.

Take advantage of technology to keep your family safe and get what's best for your child.