If you’re the victim of violence in your home, and you make the move to a safe living situation and divorce, one of your primary concerns is undoubtedly the safety of your children. Will the parent who abused you—or your children—be granted custody or visitation rights by the divorce court?
When family courts rule on child custody, their sole concern is the best interests of the children. That, obviously, means taking into account which parent can guarantee the children a safe, stable home. If the other parent has been convicted of domestic violence, or you can show that you have been physically abused even if there hasn’t been a criminal conviction, it will be a powerful factor in the court’s custody decision. Most states’ laws list explicitly require judges to consider domestic violence when they make child custody decisions based on what is in a child’s best interests.
Many states go further and establish a presumption that custody will not be awarded to a parent who has committed domestic violence. That means the court starts out presuming it will not grant custody to the abuser; only if the abuser can come up with very convincing reasons and evidence will the court move from its original position.
It’s well established that seeing violence at home negatively affects children. Many children who aren’t abused themselves but witness one parent abuse the other develop behavioral and emotional problems like those experienced by children who have themselves been physically abused. Later, they may suffer the symptoms of post-traumatic stress syndrome.
Violence also begets violence. Children who witness domestic violence may come to believe that such behavior is acceptable and normal. They see the victim seem to accept the abuse, at least for short periods of time. They may learn to use coercive power as a way to influence loved ones. As they get older, boys tend to identify with the aggressor and lose respect for the victimized parent—or feel guilty for not being able to protect her.
You might be worried that the court will fault you for not protecting your children from witnessing violence in your home. But generally, courts understand that women who are the victims of domestic abuse often develop what is sometimes called battered woman's syndrome, a condition likened to post-traumatic stress disorder, which makes it hard to take action.
The syndrome is generally considered to have four characteristics:
1. The victim believes that the violence was her fault.
2. The victim has an inability to place the responsibility for the violence elsewhere.
3. The victim fears for her life or the children’s lives.
4. The victim has an irrational belief that the abuser is omnipresent and omniscient.
The abusive behavior tends to go through a predictable cycle. First, tension builds; then there is the violence and abuse, followed by a period of calm and even affection and remorse.
Many judges and social workers have also come to understand that some spouses stay in abusive relationships for understandable reasons. During calm periods, the formerly abusive spouse may be very loving. Many abused spouses are more fearful of leaving than of staying. They also tend have low self-esteem from the continued abuse, and many lack financial resources because the other spouse controls the money.
For more on what's best for the child(ren), see The Best Interests of the Child.
If you're facing violence during a divorce or break-up, see Divorces Involving Domestic Violence.