Accused of domestic violence will father get custody of children?Recently on our legal forum a mother asked, "After years of physical abuse I have decided to leave my children's father. Although he was never violent towards the kids, I am terrified that he might get visitation and eventually hurt them. Are their protections for my kids if I divorce their father? I want to protect them, and I am really scared."
What is domestic violence?
Domestic violence laws vary by state, but generally, domestic violence includes any kind of abuse committed by one family member against another member of the family. Violence can include actual physical violence, threats of violence, sexual harm, and threats that make you fear for your safety.
If you are the victim of any type of domestic violence or you fear for your or your children's safety it's imperative that you not only report the abuse to the proper authorities and get an abuse prevention order issued, but you also get to a safe place.
Child custody and domestic violence issues
Visitation or physical custody of a child will determine not only how much time one parent spends with a child, but also legal custody, which determines who makes legal decisions about the child. Visitation and child custody schedules are ideally created by the parents jointly at the time of the divorce. If this is not possible, however, a court will intervene and help the parents create the schedule.
Regardless of who makes the schedule, the overall goal of the visitation and custodial agreement is to create a schedule which is in the best interest of the child. Specifically, the court will try to create a schedule which they believe maximizes the happiness, security, mental health, and emotional development of the child.
Although this generally means that the court believes a close relationship with both parents is ideal, if one spouse is violent towards the other this can have a very serious impact on a child custody case.
When is domestic violence relevant to the child custody case?
Evidence of domestic violence is always relevant in a child custody case. Although state laws can vary, domestic violence is considered harmful to a child, even if the child was not the victim of the abuse, and can limit or potentially eliminate the violent spouse's access to the child.
Keep in mind, however, an abuser can present evidence to the court that they are no longer a hazard to the child. For example, the abuser can present evidence that they have completed an anger management course or parenting course, or that they are no longer taking drugs.
Regardless of the evidence, however, many courts are reluctant to allow parents who have been convicted of domestic violence full or unsupervised access to their children. This is true even if the violence is not directed towards the child, but merely occurs in the presence of the child.
With this in mind, it's very unlikely that your spouse will get custody of your children or even be allowed unsupervised visitation. It's important, however, that you discuss your case with a divorce lawyer.
Do not fabricate domestic violence allegations.
Although we are not suggesting you are fabricating allegations of domestic abuse, in an effort to increase their chances to get full custody of their children, some spouses do. Falsifying allegations, however, is a serious offense. While protecting your children is imperative, eliminating their access to their father or mother simply because you are angry can have long-term consequences for your children.