When there have been instances of domestic violence, this further complicates the issue of child custody between separating parents. It becomes even more challenging to decide on the issue of child custody as the focus needs to be not only on the safety of the child, but also on the safety of the parent who is the victim of domestic violence.
If domestic violence has been the cause of the breakdown of the relationship, there will need to be measures set in place to safeguard both child and parent. This could result in the abusive parent being denied access altogether with the child if the courts feel that they pose a risk to the safety of the child. It is highly unlikely that they would be granted custody, even if in a joint capacity.
In all likelihood, the parent who has been abusive will be granted some form of visitation with the child, but it is likely to be either supervised or done through a hand over session. The only way they will be granted visitation rights is if the courts believe they pose no risk to the child’s safety and wellbeing.
What is Considered as Domestic Violence?
Domestic violence is defined in law as “Any incident or pattern of incidents of controlling, threatening behaviour, violence or abuse (psychological, physical, sexual, financial or emotional) between those aged 16 or over who are, or have been intimate partners or family members, regardless of gender or sexuality.”
It is also not limited to the above definition. Other factors come under the umbrella of domestic abuse. These include:
- Controlling behaviour – Where one partner aims to dominate the other by means of isolating them from support, making them feel inferior, causing them to be dependent by withholding the means by which they may support themselves.
- Coercive behaviour – Making a partner feel afraid through acts of assault, abusive language, threats, humiliation and intimidation.
Implications of domestic violence on child custody:
- Contact between the perpetrator of the violent acts and the child, during a custody hearing may be limited or denied completely.
- The impact of domestic violence on the child’s emotional and physical wellbeing will be considered.
- The role that both parents have played in the child’s life to date with a focus on the reason for the petitioner to be seeking custody will be determined.
- The offending parent will need to demonstrate an understanding of how their behaviour has impacted on the child’s life and be prepared to make positive changes to be allowed to maintain contact with their child.
Changing child custody arrangements following abuse
Through this traumatic and upsetting time, if you are able to keep a record of any incidents of abuse, verbal or physical, this will help to strengthen your case when seeking custody of your child. Whilst it may not be easy to do under the controlling behaviour of some partners, any notes you can make of the abuse you or your children have suffered or witnessed will help with your child custody action.
Likewise if you are able to take photographs with date/time stamps of any injuries or visit your doctor/hospital to get an official medical record of any injuries incurred, this will help to support your case for a change in child custody.
If neighbours have witnessed or heard any abuse, ask them to record what they have seen. They could be used as a witness for their own observations.
Whenever possible report any obviously illegal acts to the police. They will keep records which will all help to support your claim.
It is crucial to enlist the help of a solicitor specialising in family law to help you gain immediate legal custody of your children to prevent your partner from accusing you of kidnapping. To do this you may apply to the courts for an emergency protective order. This order is only temporary, but your solicitor will be able to help you with the long term custody arrangements.
If you are scared or worried about your safety or the safety of your children, the police can issue a Domestic Violence Protection Notice. You will then need to apply to the magistrates court for a Domestic Violence Protection Order which will stop your partner from having any further contact with you. This only lasts for 28 days, but if in that time your partner does try to contact you, they can be arrested for breech of the order.
In both instances, the judge will be looking at what is best in the interests of the children. If they feel that there is an issue of child safety, then this will take priority. However, recent revisions in the law now include consideration to the parent that is the victim of abuse.
To apply for sole custody of your child on the grounds of domestic violence, you will need to build your case to demonstrate that there is a concern for the child’s welfare. You may be entitled to get legal aid to help with solicitors fees and court costs if you are on a low income and can’t afford to pay the legal costs.
At each stage of the court process, the court will need to establish whether there is a welfare issue and how this is relevant to the child arrangements. If abuse has been proven or admitted, the court will decide what is in the best interest of the child in terms of contact with the other parent.
Contact Rights
At this stage, the onus is on the abusive partner to prove that they will not expose the child to any abusive behaviour or allow them to be affected by it. The courts may decide that the partner needs to undergo therapy or anger management before they are permitted to spend time with their child.
Should contact with the child be granted, there are several different types of contact that can be awarded.
- General contact – which is unrestricted and can include over night stays. This may not be appropriate where domestic violence has been proven if the court feels that the child or partner are at risk.
- Hand-over contact – If the parent seeking contact is considered safe for the child, they could have a hand-over via a children and family support centre. This will mean that the victim of domestic violence doesn’t have to have contact with their abuser.
- Supervised contact – If there are any doubts regarding the child’s safety and welfare, supervised contact may be granted. This will take place at a family support centre and both child and parent will be required to remain in the centre during the visitation.
- Indirect contact – This would mean that the parent seeking contact would only be able to do so via means such as mail, telephone and Skype.
Other Restrictions That Can be Placed on an Abusive Parent
You may still be worried that your ex-partner poses a continued threat to you and your family if they have contact with your child. Take legal advice on legal options open to you, such as:
- A Non-molestation Order – This is a way to legally prevent your partner from using threatening behaviour or violence against you or harassing you in any way. They can be charged under a criminal act if they violate the order as well as being taken to civil court.
- Occupation Order – This is to protect you from the abusive partner living in or entering your home or the surrounding area.
- Restraining Order – Similar to a non-molestation order but with a more specific action. It may be to prevent your ex partner from coming to your place of work for example.
How Legal Advice Can Help
Domestic Violence can be difficult to prove and although great strides have been made in altering the laws, there is still an onus on the victim to prove the abuse. It doesn’t matter if you are male or female, if you are being abused, you deserve protection and so do your children.
A family law solicitor will be able to help you to build your case for child custody on the grounds of domestic violence that will ensure you and your children are safe.
Your solicitor will be able to negotiate on your behalf to negate you having to address your abuser directly, ensuring that the child custody arrangements are suitable for both your child and you.
Author
Gill Laing is a qualified Legal Researcher & Analyst with niche specialisms in Law, Tax, Human Resources, Immigration & Employment Law.
Gill is a Multiple Business Owner and the Managing Director of Prof Services - a Marketing Agency for the Professional Services Sector.
