Domestic Violence and Child Custody

Child custody is an incredibly important decision and when there is a history of domestic violence the decision becomes even more important. I am going to address the issue of child custody when there has been a history of abuse by looking at a hypothetical situation.

A husband and wife with a five year old child are going through a divorce. There is a history of domestic violence. There are numerous police reports about calls the wife made after being abused. During the divorce the mother brings up the domestic violence in her bid for sole custody.

The father finds himself at risk of losing custody and visitation with his child. The courts presume that an abusive parent should not be awarded joint or sole custody. The courts look at the best interest of a child, and the most important factor is the safety and welfare. An abusive parent is presumed to be a risk to the child’s best interest.

It is tremendously important and difficult for parents in this position. The mother is obviously worried the abuse aimed at her will now be turned toward her child and the father does not want to lose custody of his child.

At this point the father will not be awarded custody unless he can prove the child is not at risk. It may be very challenging and the father will be forced to analyze why his past of abuse does not put his child at risk. The court is looking only at the best interest of the child and unless the father can convince the court the child would be safe.

One example where the father may be able to overcome the custody presumption is that the abuse was the product of mental illness and he has since been diagnosed and medicated. Since beginning treatment there have not been any other events. There are other possibilities, but it is the fathers job to prove he does not create a risk to the child.