How Family Courts Fail Domestic Violence Victims in Child Custody

Custody and visitation when one parent has an established history of domestic violence

New York, like a number of other states, simply weighs whether there has been a history of domestic violence in the family when weighing a number of factors in deciding what is in the best interest of the child when it comes to custody and visitation. The New York statute has not been amended since 1996, when the law adopted the consideration of domestic violence as a factor in child custody best interest determinations, but it was made explicit, at that time, that the “presence alone [of domestic violence would] not be outcome determinative.”

What the Research Indicates

In terms of studies on juveniles and families, there is a rebuttable presumption that it is detrimental to the child and not in their best interest to be placed in sole or joint legal or physical custody with a perpetrator of family violence. There is no question, in terms of studies done of the effects of domestic violence on children, that emotional abuse is often even more likely to result than physical abuse for these children, and the mere exposure of a child to domestic abuse constitutes, by itself, a severe form of child abuse.

Problems with the Alienation Defense

Still, in spite of this body of information on domestic violence and its impacts on children, courts do award custody to abusers and fail to hear the warnings of the other parent in a number of cases; sometimes due to the effective use of the alienation defense by the abusive parent. For example, here in New York, in one particular infamous case, in spite of providing warnings to the court regarding their father’s history of domestic violence, a mother lost custody of her three children, and one of the children was soon thereafter killed by his father while in his custody.

The Blind Spots

The Office on Violence Against Women has issued Guiding Principles for child custody decisions in cases involving domestic violence. These principles include providing access to information, ensuring court procedures are based on evidence and that there are victims’ services available, prioritizing these cases, providing safe disclosure of domestic violence and parenting time issues, and the importance of temporary orders and timeliness in terms of getting before the court in these cases; amongst others.

However, there is an inherent issue involved, even in these guiding principles, as they all rely on an established, documented history of domestic violence, while domestic violence, by its very nature, is very often kept secret, usually for the sake of the safety of the victims.

They also inherently follow the same path that many custody agreements and courts follow of encouraging abusers and victims to “work together” to raise children in order to maintain the “family,” in spite of the history of abuse, all “for the sake of the kids.” This essentially involves placing victims – and children – back in the cycle of the abuser on a regular basis. What the principles fail to do is focus on the credibility of the complaining witness/victim, as well as acknowledge the trauma and its potential impact on them.

What is also of concern is the fact that research shows that family courts do not review their own child custody/domestic violence cases to actually follow up and document whether their decisions are having negative impacts on children and families, and how victims fare, years later.

Contact Our New York Domestic Violence & Family Lawyer

When it comes to child custody and domestic violence cases, it is imperative that the courts are blocked, by the victim’s attorney and others, from using alienation theory as a reason to discount abuse allegations. If you have been hurt by domestic violence, rest assured that Rockland County domestic violence attorney Robert S. Sunshine can help you obtain the protection that you and your children need. Contact us today to schedule a consultation and find out more.

Sources:

justice.gov/archives/ovw/blog/child-custody-decisions-cases-involving-domestic-violence-guiding-principles

nycourts.gov/courthelp/family/bestInterest.shtml