Child Custody in Domestic Violence Cases

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As domestic violence allegations have surfaced more frequently in custody-litigating families, child custody evaluation has become increasingly challenging, and competing paradigms and research claims have contributed to gender bias in the process. The volume of unrepresented litigants has also strained the system. For legal and social service advocates serving domestic violence victims, mitigating gender bias in the system is essential. Prevailing biases seem based on flawed assumptions, such as: children’s exposure to domestic violence is indicative of a mother’s (not father’s) failure to protect; or that mothers who are victims of domestic violence make unfit parents, but no such conclusions are attached to their abusers; and that the most minimal levels of paternal responsibility are viewed as evidence of ‘good fathering’ while double standards are applied to mothers. In addition to such biases, women’s claims to domestic and sexual violence are viewed with suspicion, so much so that they are even getting legal advice not to disclose domestic violence because it will be used to damage their credibility by opposing parties and to support conclusions that find against her.

Thus, concerns that gender inequality is not adequately understood in the context of domestic violence are borne out by custody procedures that seem to privilege fathers over abused mothers in applying the ‘best interests of the child’ standard.  In fact, the presence of domestic violence tells us about the presence of inequality in a relationship; the extent of the abuse tells us about the extent of the inequality. Cultural biases may also influence child custody determinations and can be mitigated by culturally competent evaluations that identify the dynamics of domestic violence in Asian families – particularly in the extended family home – and assess their impact on abused mothers and children.

Resources on Child Custody and Domestic Violence

Other Resources

Battered Women’s Justice Project: The National Child Custody Project aims to increase safety for battered parents and their children while promoting fairness in all custody-related processes through training, technical assistance, and resources

Family Violence Appellate Project: dedicated to helping domestic violence survivors in California and their children by appealing trial court decisions on their behalf, for free

Legal Momentum: Legal Resource Kit for Domestic Violence and Child Custody (2005)

National Council of Juvenile and Family Court Judges: Webpage on Family Violence and Domestic Relations offers training, technical assistance, publications, and other resources on custody in domestic violence cases, including the Safe Havens Supervised Visitation and Safe Exchange Grant Program, which increases opportunities for supervised visitation and safe exchange by and between custodial and non-custodial parents, in cases involving domestic violence and other abuses