Child Custody and Visitation Decisions in Domestic Violence Cases: Legal Trends, Risk Factors, and Safety Concerns (Revised 2007)
Describes major legal and social trends surrounding custody and visitation decisions and the social science evidence supporting the need to consider domestic violence. Recommendations for custody and visitation decisions are explored.
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Child Custody and Visitation Decisions in Domestic Violence Cases: Legal Trends, Risk Factors, and Safety Concerns Daniel G. Saunders in consultation with Karen Oehme (Revised October 2007).
- Approximately half of all state laws make a presumption that it is harmful to the child and not in the best interest of the child to be placed in sole custody or joint physical or legal custody with the perpetrator of domestic violence. In the remaining states, domestic violence is merely one factor in a list of factors that must be considered in custody and visitation decisions.
- States have increasingly provided protections for battered women in the divorce process, for example exempting them from mandated mediation, protecting them from charges of "child abandonment" if they flee for safety without their children, and making it easier for them to relocate if they are in danger.
- Despite a reasonable reluctance to co-parent out of fear of harm to themselves or their children, battered women may end up being labeled "unfriendly," thereby increasing the risk of losing their children because there may be a 'friendly parent' statute that favors the 'cooperative' parent.
- A recent trend is the use of 'parenting coordinators' or 'special masters,' a mental health or legal professional with mediation training who focuses on the children's needs and helps the parents resolve disputes. They can make decisions within the bounds of the court order but it is important that they have training on domestic violence and realize when they need to act primarily as an enforcer of the court order.
- Another recent trend is the use of 'virtual visitation.' Web cams and videoconferencing can supplement face-to-face visits or replace face-to-face visits in more dangerous cases.
- When parents believe the legal system has failed them, they sometimes form grassroots support and advocacy groups. They may conduct court watches and help parents share common court experiences, especially when they lose custody when trying to protect children and themselves from abuse.
- Half the men who batter their wives also abuse their children, a rate twice as high as that of battered women.
- Emotional abuse of children by men who batter almost always occurs because nearly all of these men exposed their children to domestic violence, and such exposure often has traumatic and lasting effects.
- Mothers may be unjustly blamed for harming their children through "failure to protect," since mothers are supposedly capable of protecting their children from the physical and emotional abuse of their partners.
- Parental separation does not prevent abuse to children or their mothers. Indeed, physical abuse, harassment, and stalking of women continue at fairly high rates after separation and divorce and the risk of homicide increases. Attempts to undermine the mothers' authority and to disparage her in front of the children also increase.
- Men who batter often have chronic but well hidden psychological disorders and problems stemming from childhood traumas that are often not apparent to evaluators and judges; on the other hand, battered woman's psychological problems, primarily depression and posttraumatic stress disorder, appear to be reactions to the violence.
- Successful completion of an abuser intervention program does not substantially reduce the risk of re-abuse. Special parenting programs for men who batter are growing in number but remain untested.
- A high percentage of couples labeled 'high conflict' are experiencing domestic violence, and thus attempts to detect domestic violence within 'high conflict' families are crucial. Unfortunately, domestic violence is often not detected or not documented in custody/visitation proceedings.
- Contrary to common belief, allegations of domestic violence are not generally more common in disputed custody cases. When allegations are made, one study found that mothers are more likely to have their abuse allegations substantiated than fathers.
- Evaluators and judges may need more information on the continued safety risks to children from abusive fathers, the likelihood of post-separation violence, risks of mediation, the inadmissibility of Parent Alienation Syndrome, and the limitations of criminal justice and treatment interventions.
- The past and potential behavior of men who batter means that awarding joint custody or sole custody to them is rarely the best option for the safety and well-being of the children.
- Visitation should be granted to the perpetrator only if adequate safety provisions for the child and adult victim can be made. Orders of visitation can specify, among other things, the exchange of the child in a protected setting, supervised visitation by a specific person or agency, and completion of an intervention program for perpetrators.
- Visitation should be suspended if there are repeated violations of the terms of visitation, the child is severely distressed in response to visitation, or there are clear indications that the violent parent has threatened to harm or flee with the child.
- Some professional standards developed for supervised visitation/exchange programs contain a section on domestic violence that requires policies and procedures designed to increase safety for domestic abuse survivors and their children. In addition, the U.S. government is providing technical assistance to increase the awareness of visitation/exchange programs and their community collaborators of the special needs of battered women and their children.
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