- Legislation should require the court to give priority to the best interests of the child and the safety of the parent who is the victim of domestic violence.
- Legislation should require the court to consider the perpetrator’s history of causing physical or psychological harm or causing the reasonable fear of physical or psychological harm to family members.
- Legislation should mandate that the absence of a parent from a court proceeding because of domestic violence, or the relocation of a parent due to domestic violence, should not weigh against the absent parent in determining custody or visitation.
(See Family Violence: A Model State Code (1994), USA, Sec. 401 and 402.)
Case Study: Battered Mothers’ Testimony Project: A Human Rights Approach to Child Custody and Domestic Violence
In a 2003 study, the Arizona Coalition Against Domestic Violence found that evidence of partner and/or child abuse did not prevent the abuser from winning sole or joint custody in most cases; income level—highly skewed in favor of fathers—apparently had the most impact on the custody order. Orders for protection had no impact on the final custody decision, with courts ignoring documented domestic violence evidence despite state law to the contrary. The study found that 100% of the victims were ordered to go to face-to-face mediation with the abuser. Researchers noted that a large number of judges thought that since the parties were separated, domestic violence was not a concern; and unsupervised visitation was frequently awarded. A majority of the women also reported condescension from state actors, denial of adequate opportunity to present their cases, and the use of abusive litigation tactics by the batterers.
The study found widespread violations of state law, constitutional due process and equal protection guarantees, and international human rights law. The authors made a number of recommendations, including: ongoing training for judges and court personnel to educate them about the dynamics of domestic violence and child abuse, including post-separation violence; requiring judges to write detailed findings of fact and conclusions of law in their custody orders; no mandatory face-to-face meetings between victims and abusers; supervised visitation when there is violence; elimination of existing time limits for contested custody hearings; sanctions for litigants who abuse the legal process; and reform of the complaint process against judges and custody evaluators.
Example: British Columbia, Canada’s Family Law Act, Bill 16 – 2011, provides an example of legislation that places the safety and best interests of the child first when couples separate or divorce. The act makes the best interests of the child the only consideration in deciding issues related to the child and uses the following criteria to determine the best interests:
- History of care of the child,
- Impact of family violence on the child’s safety, security or well-being,
- Child’s preferences, as appropriate, and
- Any civil or criminal proceedings relevant to the child’s safety and well-being.
The act also gives courts the tools to deal with family violence by defining the term; identifying risk factors to be considered in cases involving violence; and making safety the key goal of the best interests of the child test.
See also Violence Against Women in the United States and the State’s Obligation to Protect (2011), p. 62 – 63, para. 88 – 97; Davis, G., K. Lizdas, S. Tibbets Murphy, and J. Yauch, “The Dangers of Presumptive Joint Physical Custody,” Battered Women’s Justice Project, Minneapolis, MN, USA (2010).