Domestic violence during a child custody case, family law / divorce can make the separation more difficult as it is unknown how the result of such a case will impact your children. The most important aspect of removing yourself from domestic violence and achieving child custody is to transition in such a way as to place little risk that the children will be placed in danger or be harmed by domestic violence in the process of removing them from the toxic situation. Such a removal may require great sacrifice by leaving behind property, possessions, money, etc. and may be very difficult as most abusers make it intentionally difficult for their victims to leave and may even make it harder after each time the victim failed at escaping in the past. If you find yourself in this type of situation it is important to take the following steps in order to escape the violence and to obtain child custody.
Domestic Violence Record Keeping
If you are still staying with the abusive spouse or domestic partner it is important for you to maintain all records of the abuse in a place that is secure or inaccessible to the abuser. If an abuser is able to find the evidence of their abuse this may place you at greater harm or they may intentionally destroy all evidence that could be presented in court. In documenting any domestic violence you should take photographs of any physical abuse. Also for any physical or emotional abuse you should keep a diary of the event with a discerption of what happened in detail and include any injuries or threats that involved yourself or your children. If possible you should also document abuse with a medical professional to establish a verifiable account of what occurred and to treat the injuries caused by the abuse.These detailed accounts may aid a judge in providing protections from the abuser and ensuring that the children are protected from abuse during visitations and exposure to the abuser.
Have a Plan for Safety
In the event that you do decide to leave you may be at the most risk for abuse and danger. Whenever you are at the point where you are ready to leave the relationship and the abuser is made aware of this then the abuser becomes infuriated and is most likely to place you in a life threatening situation. An abusers primary objective in using abuse is to control you and when you decide to leave it removes this control. If you do decide to leave it is important to have resources to do so and to plan in advance. You need to have a safe place to go where the abuser cannot locate you. Staying with family members may not be an option if the abuser knows where the family members live and can simply locate you at their residence. You may need to stay at an associate’s home/ coworker or with someone that the abuser is unfamiliar with. Other options may include staying at a victim shelter or a hotel. You may also need to hide your vehicle somewhere other than where you are staying to prevent the abuser from locating you. It some situations you may need to verify with the cell phone company that the abuser has not placed tracking on your phone prior to you leaving as they will find you and you may also need to have your car inspected to ensure that the abuser has not placed location devices on your vehicle. If your abuser is able to locate you then your life may be at risk.
File for Legal Custody before the Abuser Attempts To
If you are in the process of leaving or have already left then you need to file the correct paperwork with the court to establish custody and protect yourself and your children from the abuser. After leaving you should file an Emergency Protective Order to establish custody for yourself and prevents the abuser legally from having any contact with you or your children, stalking, harassing, etc. Failure to file a protective order that includes a custody determination can place you at high risk for having your custody of your children awarded to the abuser. Without a temporary custody determination or reason for your hiding issued to the court then you may be accused of kidnapping or alienation and may lose custody as a result of these accusations.
Once a temporary emergency order for protection expires or another custody order comes before the court the judge will be able to make a final court order for custody – either through legitimation, divorce, or separation. In ruling in the final decision the judge will take into account all evidence and testimony provided in the case including all information’s provided to support abuse allegations, therapist recommendations, and medical providers treating abuse. In light of this information a judge will still abide by the best interest of the children standard under state law. Most of the time if allegations of abuse occur and can be verified then primary custody is usually awarded to the non-abuser; except in situations in which the non-abuser suffers from extensive mental disorders, is declared unfit, or may be unable to care for the children. In any case a judge will evaluate the history of violence and the concerns for the children’s safety when determining the child’s best interest and custodial placement.
Just because someone has been found guilty of domestic violence or has been arrested for domestic violence does not bar them from getting visitation with minor children. If a permanent restraining order is not issued then it is possible for a judge to award the abuser some form of visitation with the children. In cases where it is found that the abuser has completed their domestic violence class requirement and has not abused the children during the abusive period then these abusers may in fact be awarded regular visitation schedules- including every other weekend, overnight visitation, and holidays/ special occasions. Even in cases where the other parent has abused the child they may still receive visitation after therapy or after a specialized visitation schedule. In most cases where you believe that it is necessary to protect the children from abuse you may request that the abusive parent exercise their visitation at a supervised visitation facility. In some cases even abusive parents that have physically battered their children or sexually assaulted them have still obtained visitation with their children in jail under supervision- until it is recommended by a therapist that such visits were detrimental and a court order is made to restrict such visitations. Other restrictions to visitation may also be issued by the judge to ensure the child’s safety; such as, requiring the abusive parent to refrain from using drugs, alcohol, and cigarettes in the child’s presence. Furthermore, restrictions may also be made to state that the abusive parent refrain from placing the child in harm’s way and may even limit which individuals may be present around the children during visitation.
Transporting your children to and from visitation may be difficult in a hostile situation with an abusive ex-partner. In many instances, abusers use visitation transportation arrangements to contact the victim and to accost them physically and mentally. Also visitation transportation and exchanges in high conflict situations tend to incite hostility and abuse problems- which then lead to physical and mental altercations in front of the children. There are several cases that occur each year where a victim of domestic violence is killed by their abuser due to enragement of the abuser during a visitation exchange. Typically a judge will agree to have a transportation or exchange arrangement adopted into the child visitation order that allows for the parties to feel safe. In any case victims of domestic violence should always maintain safe arrangements or safety equipment in the even that they are assaulted or attacked.
- Make arrangements to have third parties transport the children for visitation exchanges
- Or make arrangements where you are always escorted by a third party during visitation exchanges.
- Agree to meet at a neutral location – public place, visitation center, police station, mall, or bank. This should be a location that will have video surveillance of the parking lot or the area in which the exchange is to occur.
- You may also ask for the judge to appoint supervisors for the visitation or for a Custody Evaluator or other legal professional to participate in custodial exchanges.
- Make sure that you have a safety plan or safety equipment in case a situation where to turn violent.
- Call the police 911 if at any time you feel unsafe or if you believe that the abuser is intending to harm you or your children.
- Leave if possible if you feel that the situation is unsafe.
- Do not agree to relocate visitation exchange locations at the last minute- your family and other individuals should have knowledge in advance of where you are going for the exchange process.
- Do not agree to meet for the exchange in private without the presence of a third party.
- Do not agree to change transportation arrangements to something that you or your children do not feel comfortable with.
- Do not agree to go into the abusers residence for any reason during child visitation exchanges.
- Do not agree to meet in a secluded area or an area in which there is not a lot of people.
- Do not meet for an exchange without safety equipment- mace, stun-equipment, flashlight, safety stick, whistle, etc.
- Do not meet if you will not have access to a phone or in an area where you know you will not have cell reception.
- Do not stay at the exchange point if you feel that the situation is not safe.
If you are not financially able to afford an attorney then legal aid may provide you limited assistance with filing paperwork and support during the beginnings of the litigation process. In a few cases legal aid may also find an attorney for you that will be willing to take your case pro-bono. If you believe that the other party/ abuser has hired an attorney then it may be necessary for you to acquire an attorney as well to represent you in your protective order or child custody case. In any case where resources are available you should hire a good family lawyer with domestic violence experience to assist you in escaping from the abusive relationship cycle.
Free legal aid offered by most abuse shelters will be able to either locate you adequate legal assistance or to assist you in the initial filing and presentation of the case for a protective order. Most courts are sympathetic to individuals seeking protection from domestic violence and may be able to provide you with additional resources in the event of a highly contested court case. If you intend to self-file for a protective order or other court proceeding as a result of domestic violence then the courthouse of jurisdiction may be able to provide the self-filing paperwork for filing a restraining order with included instructions and assistance information in a single packet.
If you do intend to seek legal assistance and are in a domestic violence situation then the Coleman Legal Group LLC will be able to assist you in achieving your legal needs. Our lawyers have experience in high conflict family law cases including those concerning abuse. If you have questions concerning your case or wish to acquired our firm for legal counsel then contact us for a consultation today.