Taking Domestic Violence Into Account in Custody Cases: An Evidence Based Analysis and Reform Proposal

Promoting the best interests of children and protecting them from serious endangerment in the context of a divorce or parentage case has become highly politicized and highly gendered. There are claims by fathers’ rights groups that mothers often falsely accuse fathers of domestic violence to alienate the fathers from their children and to improve their financial position. They also claim that children do better when fathers are equally involved in their children’s lives, but that judges favor mothers over fathers in custody cases. As a consequence, fathers’ rights groups have engaged in a nationwide effort to reform the custody laws to create a presumption of equal parenting time, with no exception when one of the parents has engaged in domestic violence (“DV”). DV survivors, and their advocates, however, claim that the needs of survivors of DV and their children to become safe and free from further abuse are not being met in custody cases, that their claims of abuse are not being believed, and that the harm to their children from being exposed to domestic violence is not being recognized and addressed by judges. To separate the wheat from the chaff, this article first presents a literature review, with articulated scientific standards applied to each of the pieces of research cited in this review, on what is happening outside of court and in court relating to domestic violence and best practices for taking domestic violence into account in these child custody cases. Among the key findings from this literature review are: (1) exposure to DV can cause serious long-term harm to children, (2) custody judgments tend to favor fathers over mothers because greater weight is placed on claims of alienation than on DV claims, (3) long-term harms can be mitigated by evidence-based best practices, most notably, supporting non-abusive parents in their efforts to protect themselves and their children from further DV, (4) family law professionals must be trained on DV and its nuances to adequately support them, and( 5) a key component of this training is learning how to distinguish “situational couple violence” for which “parallel parenting” custody arrangements and other protective features might be feasible, from a pattern of “coercive abuse” where sole decision making and primary parenting time should be ordered to the non-abusive parent, and more extensive protective measures affecting parenting time should be ordered to the abusive parent. The article then reports on a fifty state review of custody related laws (laws determining which parent makes major decisions relating to the child, who is allocated primary parenting time, and whether protective restrictions shall be placed on the parenting time of a parent who has engaged in domestic violence). This review found huge gaps between what evidence-based best practices suggest, and what is currently required by law. These gaps in the law, including the failure of the law to require DV screening and training, contribute to poor custody decision-making by judges and the family law professionals they often rely upon, that compromise the safety and welfare of DV survivors and their children. The article then proposes nuanced law reforms that would align custody related laws with evidence-based best practices for taking DV into account in custody cases, including creating rebuttable presumptions, burdens of proof, and definitions of domestic violence that conform with these evidence based best practices.