A divorce is already an incredibly upsetting and complicated process, even when domestic violence is not involved.
Navigating a divorce and child custody case after an abusive marriage just adds another layer of complexity and pain to the procedure.
Domestic violence is defined as “violent or aggressive behavior within the home,” and can have a large impact on a child custody case.
How Domestic Violence Impacts Child Custody Battles
If there was domestic violence in a marriage, it can influence factors in the divorce case such as how to divide up the assets, how much alimony should be paid to who, and who should have custody of the children.
The Mental & Emotional Impact
Before even considering the legal intricacies of a child custody battle, it’s important to understand the impact of domestic violence on children in general. Children who witness domestic violence in the home or are victims themselves are at risk for developing long-term psychological effects. Domestic violence can pass on the message to children that violence is normal or okay, leading to them acting out violently.
It can also cause children to feel guilty or blame themselves for not being able to stop the abuse. Older children can act out in even more dangerous ways than young children, such as bullying, using substances, or engaging in risky sexual behavior. Even into adulthood, children who witnessed or experienced abuse are 10 times more likely to engage in that behavior in their relationships.
During and after a child custody battle, it is vital to the child’s emotional recovery that they have a strong support system around them, including some trustworthy adults. The best thing you can do to help your child move forward is to make them feel safe, and let them be open about their fears and feelings. Once you begin the process to leave an abusive marriage, it’s a great time to teach your child about healthy boundaries.
Let them know that no one has the right to hurt them, and teach them about consent. It’s also a good idea to make sure your child has another adult in their life that they trust and can open up to, like a school counselor or a therapist.
Child’s Best Interests
When it comes to the legal part, there are two types of child custody: legal and physical. The parent or parents who have legal custody are able to make major decisions about their child’s life, such as where they go to school or what medical care they should get. Physical custody refers to who the child physically lives with, meaning who is responsible for feeding and housing them.
The exact laws relevant to your child custody case will depend on the state you live in. Most states determine custody based on the “best interests of the child.” For example, it would be in the best interest of a child to shield them from domestic violence, so they should not live in a home with exposure to violence. Based on this “best interests” policy, judges must take domestic violence into account when determining custody. This includes any domestic violence – towards any adult or child in the abuser’s life.
Some of the factors that go into determining the best interests of the child include:
- The ability of each parent to provide for their child
- Whether one parent abused the other
- Whether one or both parents abused the child
- How far away do the parents live from each other and the school
- The mental and physical health of the parents
- Whether one parent has tried to alienate their child from the other parent
- The child’s relationships with siblings and friends
- The child’s personal wishes
When looking into domestic violence in a custody battle, judges use a variety of evidence such as police reports, documents from child protective services, medical records, and restraining orders. Custody battles are civil cases, as opposed to criminal cases, meaning that you don’t need to prove domestic violence “beyond a reasonable doubt.” Instead, they go by “the preponderance of the evidence,” meaning you just have to prove that domestic violence was more likely than not to happen.
If the abusive parent wants to be reconsidered for joint or sole custody down the line, they must be able to prove they have been rehabilitated. This often involves completing a number of required courses and counseling programs, as well as not committing any other violence.
Visitation Rights & Parenting Time
Visitation – also called parenting time, depending on where you live – is usually impacted by domestic violence. Depending on the judge, the state, and the exact situation, visitation between the child and the abusive parent could result in a number of different scenarios. Oftentimes the non-abusive parent can (and will) request that all visits with the abusive parent be supervised. The supervisor can be a friend, family member, or even therapist.
There are also facilities where the abusive parent can visit with their child in a supervised, third-party location. Visitation between the child and the violent parent could also be suspended altogether, depending on the judge’s decision. They will take into account the frequency and severity of domestic violence.
Some of the limitations on parenting time that a judge may order include:
- Limited contact between the parents
- Exchanging the child in a safe, public place
- Supervised visitation only
- No overnight visits
- Keeping the child’s visitation address private from the other parent
Just because one parent has been violent in the home, that does not mean they will be barred from seeing their child ever again. There are so many factors that judges take into account, and there have been scenarios where the judge determined it was in the best interest of the child for the abusive parent to have custody.
Protecting Yourself & Your Child
The most important thing to keep in mind during a divorce or child custody case is what’s best for you and your child. Remember that children are often more aware of what’s going on than you may think, and events in childhood can have a long-lasting psychological impact. During the divorce process, children may feel scared, anxious, guilty, and angry.
Unfortunately, it’s not as simple as removing the child from a home with domestic violence, because the child may still love and miss the parent who was causing the violence. This can leave children feeling very confused. Even if your child custody case results in your child being in a safer environment, they still may feel separation anxiety from their old life. It’s incredibly important to be supportive and understanding during this time. Make sure your child has someone to talk to who they trust.
A divorce can make it feel like the whole world is on your shoulders, but don’t be afraid to ask for help. Whether it’s a friend, a mental health professional, or a legal professional, there are people in your community who can help and support you during this time. All you have to do is ask.
Sharon Feldman is a safety and legal writer working closely with Colorado Springs law firm Anaya & Chadderdon, P.C. When not writing, Sharon can be found walking her dog or rock climbing.