Nearly half of all state laws presume that a child placed in sole or joint custody with the perpetrator of domestic violence is not in the best interest of the child. For the remaining half, however, domestic violence is simply a factor (one of many) to be weighed when visitation and custody decisions are being considered.
The Family Court Enhancement Project was created by the Office of Violence against Women (OVW) to help communities and courts arrive at more constructive decisions surrounding domestic violence and custody issues. Initial participants were court systems in Multnomah County, Oregon, Cook County, Illinois, and, Hennepin County, Minnesota. Structures, practices, and procedures were identified related to parental visitation time and custody. The ultimate goal was to create activities and techniques to strengthen children’s resilience.
The result of this exercise was 16 guiding principles to address much of the following:
- Providing legal representation to victims;
- Issuing temporary orders;
- Ensuring courts have the relevant domestic violence history;
- Making victim services available;
- Advocating for evidence-based practices, among others.
Persistent Problems
While the creation of the principles is certainly laudable, some area professionals still insist on addressing persistent issues. One frequently cited issue is the court’s reliance on a prior history of abuse. Opponents rightly argue that many times there is either no prior history or the abuse has been kept secret. Moreover, when parents are encouraged to work together in the raising of the children, the abuser can use this opportunity to further abuse the children and his/her victim. The cases are numerous and documented.
Another issue is credibility findings. There is a strong focus on the process of providing education and dissemination (principal #8) and this does not take into account the trauma and the potential impact on the witness. The guiding principles place a weighty focus on evidence-based best practice evaluations. Yet, there is scant evidence of family courts looking back on domestic violence and child custody cases and analyzing how the victim and the children faired following the ruling. Longitudinal family court case studies are rare and this prevents a more profound understanding of a county’s custody determinations over an extended period.
Women being believed in court remains a concern. Alienation claims as defenses to domestic violence are concerning and an over-reliance on psychological evaluations to alter custody decisions is still common.
