Perspectives on Joint Custody Presumptions as Applied to Domestic Violence Cases

• DOI: http://doi.org/10.1111/fcre.12090
• Published date: 01 April 2014
• Date: 01 April 2014
• Author: Leslie M. Drozd,Margaret F. Brinig,Loretta M. Frederick

PERSPECTIVES ON JOINT CUSTODY PRESUMPTIONS AS

APPLIED TO DOMESTIC VIOLENCE CASES

Margaret F. Brinig, Loretta M. Frederick, and Leslie M. Drozd

Despite the trend towardstatutor y presumptions in favorof joint legal and physical custody, practitioners increasingly recognize

that domestic violence has serious implications for the efficacy and safety of parenting and shared care. This article explores

the implications of domestic violence for shared parenting and for the statutory legal and physical custody presumptions and

exceptions which are triggered by or are applicable to domestic violence. This article proposes that a better framework for

addressing intimate partner violence–related custody cases is one that guides practitioners toward fact-based determinations of

the implications of the violence for parenting and co-parenting in individual cases.

Key Points for the Family Court Community:

• Parents who are coercive controlling abusers frequently exhibit the types of problematic parenting behaviors which

make shared parenting unrealistic.

• Instead of applying blanket joint custody presumptions, all family court practitioners, including judges, should: (1) be

alert to signs that domestic violence may be an issue; (2) understand the nature and context of any abuse; (3) determine

the implications, if any,of the abuse for parenting and co-parenting; and (4) account for the violence and its implications

in their handling of cases.

• Exceptions for domestic violence cases fail to prevent the inappropriate application of joint custody presumptions to

many families for whom domestic violence is a significant issue because: (1) abuse is often not detected by the system,

(2) victims have problems provingthat the abuse occurred, and (3) many practitioners are disinclined to believe that the

abuse occurred.

Keywords: Best Interests;Domestic Violence;Intimate PartnerViolence;Joint Custody;Presumptions;Shared Care;and

Standards.

Domestic violence can have serious implications for children and parenting. The protection and

well-being of domestic abuse adult victims and children requires that custody, parenting time and

decision-making arrangements account for the links between the abuse and parenting in individual

cases. This article explores the implications of domestic violence for shared parenting and for the

statutory legal and physical custody presumptions and exceptions triggered by or applicable to

domestic violence. The authors agree that the better statutory framework for addressing intimate

partner violence (IPV) related custody cases is one that guides practitioners towards fact-based

determinations of the implications of the violence for parenting and co-parenting in individual cases.

CUSTODY PRESUMPTIONS IN IPV CASES

There are two primary ways in which IPV is implicated in presumptions related to joint custody.

First, some laws state that upon a finding that IPV has occurred, joint legal (or decision-making) or

physical custody with the abuser parent is not in the best interests of the child. This true legal

presumption compels a certain result (sole custody) upon the showing of a predicate fact (the domestic

violence). Second, a statute can state that joint legal custody or joint physical custody is presumed to

be in the best interests of children. The latter type of legal “presumption” is less an evidentiary

presumption than an expression of an assumption about what children need. Such presumptions shift

the burden of proof in order to make it far less likely that a family will end up with any different

Correspondence: Margaret.Brinig.1@nd.edu; lfrederick@bwjp.org; lesliedrozd@gmail.com

FAMILY COURT REVIEW,Vol. 52 No. 2, April 2014 271–281

© 2014 Association of Familyand Conciliation Cour ts