Child Custody and Domestic Violence

Victims of domestic violence and their children have access to protection by law. Find out how to protect yourself and your children.

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Gavel and Scales

If you are in a violent relationship, you have a different set of issues to consider when you separate or divorce, especially in relation to your children. You may have been thinking about getting out for a long time, and are finally ready -- or close to ready -- to take the final step. Here are some things to keep in mind to help you and your kids make a safe transition.

For more on issues of domestic violence and divorce, see Divorce & Family Law Cases Involving Domestic Violence.)

Keep Good Records

As long as you are still living with your spouse or partner, keep careful records of every incident of physical or emotional abuse that involves you or your kids. Write down the date, time, and place of every event, along with a description of what happened and any injuries to you or your children. These records will be a great help to you if you have to go before a judge to ensure that you and your kids are protected from the abuser.

Make a Plan to Stay Safe

After you decide to get out, do some planning if you can -- you’re in the most danger at the point when you actually leave the relationship, so put a safety net in place. Try to save some cash, preferably in a place outside of your house, and stash some clothes for yourself and your kids with a friend. Most important, arrange for a safe place to stay after you leave, one that isn’t somewhere your partner would immediately think to look for you. Don’t go to your best friend’s house, or your mom’s, or anywhere else predictable. Ask a coworker or a friend your spouse doesn’t know to put you up for a short while, or try a shelter or hotel.

Immediately Get Legal Custody of Your Children

If you have to leave home quickly with your kids to get away from an abusive spouse, go to court right away for an emergency protective order that both gives you custody of the children and requires your spouse to stay away from you. If you don’t make custody part of the protective order, you may be accused of kidnapping.

Keep in mind that the emergency custody order will be temporary. Making a longer-term plan for custody of your children will be part of your divorce proceedings -- or separation process if you are not married to the other parent. Whether short or long term, a judge will make a decision about child custody based on what the judge believes to be in the best interests of the children. State law determines the factors that a court will consider, but the safety of the children and any history of domestic violence will be a significant part of the equation. To learn more about child custody laws and proceedings, see Child Custody.

Visitation

It may seem strange for a batterer to get to see the kids, but as long as the parent hasn’t abused them, it’s not unusual for a violent parent to get visitation rights. If it’s appropriate, however, you can ask for the visitation to be supervised or for the court to require that the other parent not drink or that certain other people can’t be around the kids.

You can make arrangements to deliver the kids at a neutral pickup site or to have third parties pick up and drop off your kids. If you are dropping off the kids yourself and you don’t feel safe, you can agree to meet at the local police station, a restaurant, or some other very public place.

You can also ask the court to appoint a supervisor for the visitation. If you have other creative ideas, propose them to the judge. Most judges will consider any plan that will keep everyone save and facilitate visitation at the same time.

Getting Legal Help

Child custody and visitation issues can be difficult in any divorce or separation, but a violent relationship between you and your children’s other parent will make matters more challenging. If you have the resources, you should hire a lawyer to help you make the practical transition out of the abusive relationship. A good family law attorney can help you make the right choices for you and your kids.

If you go to a shelter, the staff should be able to help you quickly find legal assistance -- at least to file the initial paperwork for a protective order -- sometimes at low or no cost. Also, many courts offer help to women experiencing domestic violence. Your local courthouse may provide restraining order packets with instructions and in-person assistance to help you through the process.

Adapted from Nolo’s Essential Guide to Child Custody & Support, by Emily Doskow.

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