Sometimes, as family law attorneys, we get to be heroes, unsung perhaps, but still, we can save lives. Nowhere is that more obvious than in a custody case with domestic violence issues.
What Is Domestic Violence?
While statutory definitions vary, domestic violence is about control—when two people have or had an intimate relationship, and one person uses a pattern of coercion and control against the other person. Coercion and control include physical, sexual, emotional, or economic abuse and can continue after the intimate relationship has ended. In fact, your client is at greater risk of violence after a separation, and custody exchanges pose the most risk because of the abuser’s access to the victim. Peter G. Jaffe et al., Common Misconceptions in Addressing Domestic Violence in Child Custody Disputes, 54 Juv. & Fam. Ct. J. 57, 60 (Fall 2003). Additionally, your client may be in danger immediately after the complaint is served, when arriving at the courthouse for a hearing, when leaving the courthouse after the court rules against the abuser, or even when the hearing does not go the way the abuser expected. In May 2013, in Hillsborough, N.C., a father gunned down his estranged wife, in front of the children’s school, after he received a report from the child advocate recommending a 60/40 custodial schedule in favor of the wife. He wanted 50/50 custody.
Recidivism and Patterns
Twenty years ago, judges commonly believed that domestic violence was simply spousal abuse. Separate the parties and the domestic violence would end. Problem solved. However, it is now known that violent parents repeat violent behaviors after separation as well as in subsequent relationships, thus exposing the children to violence and abuse during visitation or custodial time. Elspeth McInnes, The Impact of Violence on Mothers’ and Children’s Needs During and After Parental Separation, 174 Early Child Dev. & Care 357, 357–368 (2004). Not surprisingly, the personality and behavioral traits that result in a person being violent with their intimate partner affect their ability to be a good parent. Lundy Bancroft, Understanding the Batterer in Custody and Visitation Disputes (last visited Oct. 19, 2020). Domestic violence in the home, whether against the parent or the new spouse or partner, puts children at risk for a host of behavioral, physical, and psychological problems. Sherry Hamby et al., The Overlap of Witnessing Partner Violence with Child Maltreatment and Other Victimizations in a Nationally Representative Survey of Youth, 34 J. Child Abuse & Neglect 734, 734–41 (2010). Note that children do not have to witness violent acts to be affected. Children model the behavior of their caregivers, and the behaviors of their parents frame the children’s expectations of normal behavior in general, behavior in intimate relationships, and how the world and the people in it operate. Domestic violence is a pattern of coercion and control using violent, psychological, emotional, and economic means by one parent against the other, and therefore the children are affected by the behaviors that they then model. Children are affected by dysfunctional coping mechanisms by the victim, such as “self-medicating” by using drugs or alcohol, in response to the domestic violence. They are affected by economic issues, such as the controlling spouse not allowing the victimized spouse to work outside the home, thereby reducing family income, or in some cases, by keeping the family in debt or limiting the victim’s access to money to the point that escape is simply unaffordable, which also limits the children’s access to resources. The children are affected by having a parent who suffers from depression, anxiety, and other symptoms of post-traumatic stress disorder (PTSD) resulting from the domestic violence. David Finkelhor et al., Children’s Exposure to Violence, Crime, and Abuse: An Update, Juv. Just. Bull. (U.S. Dep’t of Just. [USDOJ]) (Sept. 2015). The link between domestic violence against a parent and child abuse is well documented. Sherry Hamby et al., The Overlap of Witnessing Partner Violence with Child Maltreatment and Other Victimizations in a Nationally Representative Survey of Youth, 34 J. Child Abuse & Neglect 734, 734–741 (2010). Research has also shown that children exposed to domestic violence suffer from PTSD, learning disabilities, and long-term physical conditions related to stress (such as asthma), and that violence against mothers during pregnancy increases the risk of adverse pregnancy outcomes (including low birth rate and increased mortality rates). Chantal Cox-George et al., Domestic Violence: A Neglected Epidemic in Obstetrics and Gynaecology Training, 19 The Obstetrician & Gynaecologist 199, 200 (2017).
Presumptions and Impact of Domestic Violence on Custody Determinations
Based in part on that research, all 50 states and the District of Columbia address domestic violence in statutes regarding custody. However, presumptions regarding custody determinations in light of evidence of one parent having committed domestic violence vary from state to state. In 22 states plus the District of Columbia, there is a rebuttable presumption against a parent who has committed domestic violence having joint or sole custody. In jurisdictions where there is a presumption against domestic violence offenders being awarded custody, statutes may include what is needed to overcome the presumption. For example, in Alaska, a perpetrating parent who does not have substance abuse issues and has completed an intervention program for batterers may overcome the presumption if the other parent has mental health or substance abuse issues affecting parenting. Further variations include whether domestic violence creates a rebuttable presumption or will be considered in all instances, or only when there is evidence that the child witnessed the domestic violence or was affected by it. There may also be competing presumptions. For example, the jurisdiction may have a presumption that joint custody is in the best interest of the children unless the parent seeking custody has committed domestic violence—that creates a rebuttable presumption against joint custody.
In 26 states the court must consider domestic violence when determining custody, but there is no presumption. In these jurisdictions, the statutes vary as to the weight the court must place on domestic violence, with some statutes stating that domestic violence is a mandatory factor, some not qualifying the weight, and one, namely Montana, specifically stating that domestic violence is a factor to be considered only in the court’s discretion. For a summary of states with a rebuttable presumption against the perpetrator being awarded custody versus domestic violence being a factor, see ABA Comm’n on Domestic & Sexual Violence, Joint Custody Presumptions and Domestic Violence Exceptions.
When Both Parents Have Committed Domestic Violence
A minority of jurisdictions have addressed the issue of “mutual” domestic violence. The word mutual is in quotation marks because, by definition, domestic violence is a pattern of control and coercion by one partner against the other. That is not to say that there are never situations where both parents are violent, but only to point out that there is a difference between violent acts and a pattern of one parent controlling the family by using violence. Of course, any violence in the home, whether part of a pattern of control or not, affects the welfare of the children in the home.
In Alaska, “if the court finds that both parents have a history of perpetrating domestic violence,” the court shall either award sole legal and physical custody to the parent who is less likely to continue to perpetrate the violence and require that the custodial parent complete a treatment program or award custody to a third party who will not allow access to the violent parents except as ordered by the court. Alaska Stat. § 25.24.150.
Kudos to Alaska for recognizing the difference between an isolated act and a history, even if the statute still implies that domestic violence can be mutual. Additionally, Alaska recognizes that the victim should not be automatically penalized for the effect that domestic violence may have on the victim’s ability to parent. The Alaska statute goes on to state:
(k) The fact that an abused parent suffers from the effects of the abuse does not constitute a basis for denying custody to the abused parent unless the court finds that the effects of the domestic violence are so severe that they render the parent unable to safely parent the child.
Nevada is another jurisdiction that addresses the issue of both parents being violent. Nevada has a rebuttable presumption against the perpetrator being awarded custody, requires the court to consider which parent was the “primary physical aggressor” for purposes of applying the presumption, and lists factors to give the court guidance in making that determination, such as the entire history of violence, severity of injuries, acts of self-defense, and any other relevant facts. Nev. Rev. Stat. § 125C.0035. The presumption will only be applied to both parents if, after a hearing on the issue, the court cannot determine which parent is the primary physical aggressor.
South Carolina also acknowledges the possibility of mutual violence by including that the court should consider “if appropriate, evidence of which party was the primary aggressor.” S.C. Code Ann. § 63-15-40 (2020).
Whether “mutual” violence can be used against both parties in a custody determination will depend on the definition of domestic violence in a given jurisdiction, including whether the legal definition includes terms such as “pattern” or “practice of behavior,” and whether the statute defines or recognizes self-defense, or otherwise acknowledges that domestic violence includes more than an isolated act of physical force or threat of force, and is in fact an entire dynamic within the family encompassing multiple means of control and coercion. If the relevant statutes are silent on that issue, the testimony of an experienced domestic violence advocate or mental health professional specializing in trauma may be useful in educating the court.
Charged but Not Convicted
In every jurisdiction, a domestic violence conviction is not required for the court to consider domestic violence when determining custody. In Florida, a domestic violence conviction gives rise to the rebuttable presumption that the perpetrator should not be granted sole or joint custody; however, evidence of domestic violence without a conviction must still be considered. Fla. Stat. § 61.13 (2019). With the exception of Nevada, which requires that domestic violence must be proven by clear and convincing evidence before being considered in determining custody, the remaining jurisdictions only require a preponderance of the evidence.
But how can you present the evidence of domestic violence when the pending criminal charges give the accused the Fifth Amendment right against self-incrimination? It may take a bit of convincing, but despite the Fifth Amendment right, and the widely held belief that a criminal defendant is constitutionally entitled to delay a civil proceeding until their related criminal proceeding is resolved, no such constitutional or legal right exists under federal law.
The Supreme Court decision of United States v. Kordel, 397 U.S. 1, 11 (1970), has been cited by federal circuit courts for the proposition that, while special circumstances might warrant a stay in a civil proceeding, there is no constitutional right to stay a civil proceeding pending the outcome of a parallel criminal proceeding. See, e.g., Federal Sav. & Loan Ins. Corp. v. Molinaro, 889 F.2d 899, 902 (9th Cir. 1989) (“[w]hile a district court may stay civil proceedings pending the outcome of parallel criminal proceedings, such action is not required by the Constitution”); accord, SEC v. Dresser Indus., Inc., 628 F.2d 1368, 1375 (D.C. Cir. 1980). The effect of invoking Fifth Amendment rights in a civil case varies from state to state. In some states, the lack of a denial is treated as an admission for purposes of the civil case; in other states, the fact finder is not allowed to draw a negative inference from a refusal to answer a question that would tend to incriminate the party in a criminal action. Nevertheless, unless the case is in a jurisdiction that creates a right on the part of the accused to delay a civil proceeding because of a current or future right against self-incrimination (and an analysis of that question goes beyond the scope of this article), the evidence itself, be it the victim’s testimony, police records, medical records, witness testimony, etc., is admissible and can be used against the alleged perpetrator in the custody case.
Safety Planning Starts with a Well-Drafted Custody Order
This is where you get to put on your cape and save lives. If shared custody and visitation are granted, then your goal is to deny the perpetrator access to the victim.
- Where the custody exchange takes place matters. Google “custody exchange police station shooting,” or a combination of words to that effect, and you will see examples of parents being killed outside of police stations during a custody exchange. Police officers do not guard the parking lots of police stations. The safest custody exchanges occur without the parents having any contact at all. If that is impossible, then try to find a place with cameras, low employee turnover, security guards, and metal detectors. The lobby of the courthouse, for example; inside a bank; or even the lobby of a hotel is better than a parking lot.
- Ambiguity in a court order leads to arguments and frustration, which can result in violence. Custody provisions need to be detailed, exact, and not subject to interpretation. Address what happens if inclement weather makes traveling to an exchange unadvisable; what happens if the child or parent is sick; what happens if the car breaks down, the school closes early, or a pandemic breaks out. Obviously, every possibility cannot be listed, but alternatives when the normal schedule gets interrupted do need to be included.
- Communication, if allowed at all, should be well documented and as limited as possible. If the order is well written, it will eliminate the need for discussions and arguments about what is meant by the order. Allowing in the court order for phone calls between the parties to be recorded is better than unrecorded phone calls, emails are better than texts because they are less likely to be lost or erased, and using a shared calendar or a co-parenting app is crucial to lessen the need for communication. Rules and boundaries regarding communication with the children must also be included to protect the children’s safety and best interest.
- Children have stuff, and that stuff includes electronics such as phones and laptops. The custody order should address how items needed by the children will travel between households, as well as access to electronics by both the children and the parents, parental controls on electronic devices, and GPS tracking of the children’s electronics. GPS tracking is useful if there is a risk of parental abduction, but dangerous if used to stalk the custodial parent through the children.
- Participation by the parents in the children’s events, doctor’s appointments, and teacher conferences can be another opportunity for harassment or even violence. If both parties are allowed to participate, include provisions for the parties alternating, attending virtually, or not attending at all.
The bottom line is that every provision in the custody order needs to intentionally limit access and interaction between the parents.
Make a Difference
“The only public service that reduces domestic abuse in the long term is women’s access to legal aid.” Amy Farmer, associate professor of economics, University of Arkansas’s Sam M. Walton College of Business, and Jill Tiefenthaler, associate professor of economics, Colgate University, found that in predicting long-term rates of domestic violence, the only public service variable that mattered is access to legal services. Other services such as shelters, hotlines, counseling, etc. were beneficial but had no effect on recidivism.
—Lou Marano, Access to Legal Aid Lowers Domestic Abuse, UPI (Jan. 8, 2003).
Peter Jaffe, PhD, et al., “Parenting Arrangements After Domestic Violence, Safety as a Priority in Judging Children’s Best Interest" (2005); other writings by Peter Jaffe, PhD