Domestic Violence and Custody

• Author: Melissa Averett
• Pages: 41-44

SPRING 2021 41

Domestic

Violence

and Custody

BY MELISSA AVERETT

Recidivism and Patterns

Twenty years ago, judges commonly believed that domestic

violence was simply spousal abuse. Separate the parties and

the domestic violence would end. Problem solved. However,

it is now known that violent parents repeat violent behaviors

after separation as well as in subsequent relationships, thus

exposing the children to violence and abuse during visitation

or custodial time. Elspeth McInnes, e Impact of Violence on

Mothers’ and Children’s Needs During and After Parental

Separation, 174 Early Child Dev. & Care 357, 357–368

(2004). Not surprisingly, the personality and behavioral traits

that result in a person being violent with their intimate

partner aect their ability to be a good parent. Lundy

Bancroft, Understanding the Batterer in Custody and Visitation

Disputes, https://bit.ly/2OiS0Nl (last visited Oct. 19, 2020).

Domestic violence in the home, whether against the parent

or the new spouse or partner, puts children at risk for a host

of behavioral, physical, and psychological problems. Sherry

Hamby et al., e Overlap of Witnessing Partner Violence with

Child Maltreatment and Other Victimizations in a Nationally

Representative Survey of Youth, 34 J. Child Abuse & Neglect

734, 734–41 (2010). Note that children do not have to

witness violent acts to be aected. Children model the

behavior of their caregivers, and the behaviors of their

parents frame the children’s expectations of normal behavior

in general, behavior in intimate relationships, and how the

Sometimes, as family law attorneys, we get to be

heroes, unsung perhaps, but still, we can save lives.

Nowhere is that more obvious than in a custody case

with domestic violence issues.

What Is Domestic Violence?

While statutory denitions vary, domestic violence is about

control—when two people have or had an intimate relation-

ship, and one person uses a pattern of coercion and control

against the other person. Coercion and control include

physical, sexual, emotional, or economic abuse and can

continue after the intimate relationship has ended. In fact,

your client is at greater risk of violence after a separation, and

custody exchanges pose the most risk because of the abuser’s

access to the victim. Peter G. Jae et al., Common Misconcep-

tions in Addressing Domestic Violence in Child Custody

Disputes, 54 Juv. & Fam. Ct. J. 57, 60 (Fall 2003). Addition-

ally, your client may be in danger immediately after the

complaint is served, when arriving at the courthouse for a

hearing, when leaving the courthouse after the court rules

against the abuser, or even when the hearing does not go the

way the abuser expected. In May 2013, in Hillsborough,

N.C., a father gunned down his estranged wife, in front of

the children’s school, after he received a report from the child

advocate recommending a 60/40 custodial schedule in favor

of the wife. He wanted 50/50 custody.

Published in Family Advocate, Volume 43, Number 4, Spring 2021. © 2021 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof

may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.