How Domestic Violence Affects Child Custody in Missouri

When domestic violence occurs, it can destroy the lives of everyone involved and also affect who gets custody of children after a breakup or divorce.

This article will explain what domestic violence is and how it affects child custody. If you have any questions after you read this article, consult with a family law attorney for advice.

Domestic Violence Overview

Domestic violence comes in many forms, both physical and emotional. Missouri law provides that domestic abuse includes all of the following behaviors:

• abuse, including attempts at or threats of abuse
• assault, which means that abusers intentionally try to make other people fear for their physical safety
• battery, which is the intentional infliction of bodily harm with or without a deadly weapon
• coercion, which is compelling other people, by force or threat of force, to do something they have the right not to do
• harassment, which is engaging in an intentional course of conduct involving more than one incident that alarms or frightens an adult or child and serves no legitimate purpose except to cause emotional distress
• following someone in a public place
• peering in someone's windows
• sexual assault
• unlawful imprisonment, meaning that the abuser confines the victim against the victim's will, and
• stalking, which occurs when an abuser intentionally engages in an unwanted pattern of conduct (two or more times) that scares the victim.

People sometimes don't seek help for domestic violence because they aren't sure they have a close enough relationship with the abuser to get protection. Missouri protects "family and household members" from domestic violence. Family and household members include:

• current spouses
• former spouses
• any person related by blood or marriage
• people who are currently living together or who have lived together in the past
• people who are in or have been in a continuing romantic or intimate relationship together, and
• any two people who have a child in common, regardless of whether they have been married or lived together in the past.

If you're a victim of domestic violence, you can go to court and ask for a domestic abuse protection order. For more information, see this pamphlet from the Missouri Attorney General.

Community Resources

Missouri has lots of assistance for victims of domestic violence. The Missouri Bar Association has written a free online handbook entitled "Domestic Violence and the Law: A Practical Guide for Survivors." Legal Services of Missouri, a legal aid organization, and A.A.R.D.V.A.R.C. (An Abuse, Rape, and Domestic Violence Aid and Resource Collection) maintain listings of domestic violence information. The Missouri Coalition Against Domestic & Sexual Violence also maintains a geographic listing of service providers who can give direct assistance to victims of abuse.

Finally, victims can always call the National Domestic Violence Hotline at 1-800799-7233. It's available 24 hours a day, seven days a week.

Domestic Abuse and Child Custody

In Missouri, there are two kinds of custody: legal and physical. Physical custody is simply where the children will live. Legal custody, on the other hand, refers to a parent's legal right to make major life decisions (e.g., medical, educational, cultural) for children. In all custody cases, judges have to decide which one of the following arrangements is in the children's best interests:

• joint (shared) physical and joint legal custody to both parents
• joint physical custody with one parent granted sole legal custody
• joint legal custody with one parent granted sole physical custody
• sole custody to either parent, or
• third party (e.g., grandparents or relatives) custody or visitation.

The judge makes a decision about what's in a child's best interests by examining evidence about all of the following factors and issuing a written order:

• the wishes of the child's parents and their proposed parenting plans (meaning, the custody and visitation schedules they're each requesting)
• the child's need for frequent, meaningful, and continuing relationships with each parent
• the ability and willingness of each parent to actively parent the child
• the relationship of the child with parents, siblings, and any other major figure in the child's life
• which parent is more likely to allow the child to have frequent, continuing, and meaningful visits with the other parent
• the child's adjustment to home, school, and community
• the mental and physical health of all involved, including any history of abuse
• whether either parent intends to relocate with the child, and
• the child's wishes, if the child is old enough to express a reasonable preference.

Clearly, domestic violence is a factor in the court's custody decisions. However, just because there's been domestic violence in a relationship doesn't mean that the abuser is absolutely barred from receiving custody. An abuser can theoretically still get sole or joint custody if the judge rules, in a written court order, that a pattern of domestic violence has occurred and that it is nonetheless in the child's best interests that the abusive parent receive custody. There's one important caveat: custody and visitation rights can only be awarded in a manner that protects the child and the victim parent.

Impact on Visitation

A parent, even an abusive one, can't be denied visitation without a hearing. When the court makes its decision, itmust consider evidence of domestic violence. If there is evidence that domestic violence occurred, the court can only allow the abusive parent to have visitation if the judge specifically finds that visitation is in the best interest of the child. The judge has to consider the abusive parent's history of inflicting harm or fear of harm on the other parent, the child, and other family and household members.

If the court believes there has been domestic violence, it can give supervised visitation to the abusive parent to keep everyone safe. Supervised visitation is monitored by a responsible adult, and the parent and child are never left alone. The judge can order the abusive parent to pay for all costs of supervised visitation. Unsupervised visitation will not be allowed until the abusive parent shows proof of treatment and rehabilitation.

Placement Away from Parents

If the court rules that a parent is unfit, unsuitable, or unable to be a custodian for any reason, including domestic violence, or if it is in the best interests of the child, a child can be placed with a third party, such as a trusted relative or friend. Such a placement is only temporary, until the judge can make a final decision.

Termination of Parental Rights

The termination of parental rights means that a parent loses all rights to both physical and legal custody of his or her child. The termination of parental rights is fairly rare, and courts only use this remedy in the most extreme circumstances, for example, where a parent has subjected a child to severe abuse, including abandonment, torture, chronic abuse, or sexual abuse, or has committed similar acts against the other parent. This is also permanent, meaning a parent cannot regain parental rights once they have been lost.