Roughly 20 people every minute suffer domestic abuse at the hands of their partner. When there are children in the picture, it could impact custody and parenting time. Here is how a court will treat allegations or a conviction of domestic violence when making decisions that will affect children and where they live.
In making parenting time decisions, courts use the best interests of the child test. In some cases, the court will take extraordinary measures to protect children from potential dangers. While the presumption is that both parents should have time with their children, and communication is a must, the court will deviate from the norm when one parent presents a risk to the children. One instance in which the court could curtail access is when there is a history of domestic violence.
Above all else, the court tries to protect the children, and it has an obligation to place the children in the safest possible situation. When one parent has a track record of violence, it sparks fears that he or she may also be violent with the children. Even when the offenders are not abusive towards the children, domestic violence could disqualify them from having parenting time.
First, a divorce lawyer could explain that domestic violence has a very broad definition in New Jersey. Actual physical violence is just one type. Other behaviors that fall under the scope of domestic violence include:
Thus, even when one parent merely threatens violence against the other, it could be domestic violence. Of course, domestic violence victims should ask for a restraining order. They could also use it as evidence in a custody dispute.
The best interests of the child test has numerous factors that could be affected by domestic violence. The court is looking at the ability of the two parents to work together and agree for the sake of the children. Someone who is afraid for their physical safety may have a hard time working with the other parent. Cooperation is difficult when one person is fearing for their own well-being.
The safety of the children is also critical. The court does not want them to see or witness domestic violence, nor do they want the children themselves to be at risk. Domestic violence is often indicative of a larger anger problem that could put everyone at risk. Domestic violence often leads to child abuse, which is exactly what the court is trying to prevent.
Parental fitness and the stability of each parent’s home environment are also major factors. It goes without saying that an individual who has a temperament that leads to domestic violence may not be fit as a parent. Even if someone treats their children well, that type of aggression could eventually find its way to the kids. Sometimes, the best thing for the children’s stability is to remove them completely from the environment in which they have to encounter the parent who has committed these acts.
Physical custody is not the only issue that could be affected by domestic violence. Custody does not just involve where the children live. It also determines whether the children could spend time with a parent and how much parenting time is allowed. Domestic violence impacts both of these determinations.
While the best interests test is usually flexible and allows judges to analyze which factors fit the situation best, they must consider domestic violence. They do not have any discretion to downplay or overlook it. Judges would have very little reason, anyway, to not view domestic violence with the utmost seriousness.
Even when the court considers domestic violence, it does not automatically result in a loss of custody or parenting time. The court is going to scrutinize the nature of the abuse and ask questions about the actual acts and the frequency. The judge will look at the present level of danger that the abuser presents to both the other parent and the children.
The court may still allow a person to spend time with their children with arrangements in place to ensure safety. For example, parents could be around their kids during supervised visits. Some or all of the visit could happen with a court-appointed supervisor. Even with domestic violence, the court may still want to keep the possibility of a future bond with the parent in place. Other alternatives include allowing the parent unsupervised visits but not permitting overnight visits.
The court could also order the parent to undergo therapy while the custody case is pending. This could include anger management classes or parenting classes. If you are in this position, it is vital to do everything that the judge says and demonstrate your commitment to it. Eventually, you and your divorce lawyer could show the court that you have complied with the judge’s instructions to the letter.
If you are the parent claiming domestic abuse, you will need to act quickly. You should consult a family law attorney to figure out the best course of action. Usually, a victim of domestic violence would ask for a restraining order. If a court grants the restraining order, it could be enough to establish a history of violence for the judge to consider when making a custody and visitation determination.
However, false allegations of domestic violence to gain an advantage in the custody case would be viewed very harshly by the court. It could lead to the exact opposite effect, meaning the court could conceivably penalize the parent making the allegations.
Conversely, if you have found your custodial rights reduced because of domestic violence, you need to know that the situation is not permanent. You could work with a family law attorney to petition the court to remove supervision or increase the amount of your parenting time. If you can demonstrate that you have attended counseling and have made positive changes in your life, it could convince a judge to change the custody and parenting time order.
You could always work to establish a track record of successful time with the children to begin to convince the court that time with you is in the children’s best interests. Your family lawyer could help you work on a plan to rebuild yourself and your credibility as a parent. Even if it does not change physical custody, it could loosen the restrictions on visits and allow you to spend more time with your children.
Regardless of which position you are in, you might want to contact a divorce attorney at Lawrence Law by calling (908) 645-1000 or submitting our online form. We can answer any questions you may have about how domestic violence impacts your custody situation. We have offices located in Watchung and Red Bank. It is important that you act sooner rather than later and speak with a divorce attorney to protect your children and your legal rights.