Elmer McDuffy: Child Custody and Domestic Violence

Domestic violence shatters families, and its aftereffects are painful and lingering. There are legal ramifications too. When a couple breaks up after domestic violence has occurred, the abuse can also have an impact on who gets custody of the children.

This article will explain what domestic violence is and how it affects child custody. If you have any questions after you read this article, you should consult a family law attorney for advice.

Domestic Violence

The people most in need of help all too often don’t get it. People who have been hurt by domestic violence may not take advantage of help from the community or seek help from the courts. So it’s important to understand what domestic violence means.

Utah law states that domestic abuse can consist of a single act or it can be a pattern or history of attacks. Domestic abuse can be written, spoken aloud, or even electronic (e.g., emailed threats). The laws also explain that domestic abuse can assume a wide variety of forms, including any or all of the following:

physical or sexual assault
threats of physical or sexual assault
stalking
harassment
mental cruelty and emotional abuse (including destruction of property, threats, violence to animals, yelling, screaming, name-calling, shaming, mocking, criticizing, and possessiveness)
intimidation
isolation
economic abuse (meaning, one partner maintains total control of all funds)
“coercion” (meaning, to apply pressure or to bully) against a current or past intimate (romantic) partner
acts of child abuse or neglect that contribute to coercion or intimidation of an intimate partner
cruel mistreatment or cruel neglect of an animal, or threats of such acts
other acts of abuse, assault, or harassment, and
threats of similar acts against other family or household members.

“Family or household members” includes:

current or former spouses
children
people who have lived together in the past
people who have a child together, regardless of whether they’ve been married or lived together in the past
people related by blood or marriage, and
people who are currently dating each other or have dated in the past.

Family and household members don’t include casual relationships or ordinary associations between people in a business or social context.

Help When You Need It

Utah has a number of groups that are dedicated to helping victims of domestic violence. For instance, the Utah Domestic Violence Sexual Assault Coalition will respond with 24 hour hotlines victims can call for immediate help.

Legal Aid of Utah maintains a help site that lists fact sheets, safety plans, and links to non-profit organizations that can provide direct assistance to victims of domestic violence. Similarly, the Utah Department of Health & Human Services maintains one too with information about domestic violence and groups that can help.

For immediate help, no matter where a victim lives, you should call and get help from one of these organizations throughout Utah that provide help and services to victims and even, in some cases, to perpetrators who want counseling.

Finally, victims can always call the National Domestic Violence Hotline at 1-800799-7233. It’s available 24 hours a day, seven days a week, or, in other words, it’s open all the time and if you need help, call now.

Domestic Abuse and Child Custody

Utah courts take domestic abuse very seriously when making decisions about child custody.

As a bit of a reminder, there are two kinds of child custody: one is legal custody and the other is physical custody. In many if not most cases, physical custody goes to the parent who spends more time with and provides the majority of the daily care for the children. Legal custody, on the other hand, refers to a parent’s legal right to make important educational, medical, religious, cultural, and other decisions for his or her children. In most cases where there’s been no abuse and parents are able to cooperate, both parents have joint (shared) legal custody.

But everything is turned upside-down when family law judges are confronted with evidence of domestic abuse. The courts have to consider the best interests of a child when they make custody decisions. Those factors include:

the child’s relationship with each parent
the child’s desire about where to live, if the child is old enough to make a reasonable decision
the general health, welfare, and social behavior of the child
credible evidence of abuse inflicted on any family or household member, and
credible evidence of child abuse or neglect or domestic intimate partner abuse.

A judge must consider domestic abuse when making a custody decision. Domestic abuse between the parents or against a child in the current relationship has to be considered, but domestic abuse in other relationships is equally important. If a parent was abusive toward a previous partner or another child, the judge may consider that behavior when deciding who should have custody of the children.

Two important cases from the Utah appellate courts provided the public and family court judges with guidance about the role of domestic abuse in custodial decisions. In Davidson v. Davidson, 254 Neb. 357, 367 (1998), which presented difficult facts about how the children were treated by their parents, the Utah Supreme Court reiterated that a court can’t consider evidence of domestic abuse inflicted on a household or family member unless the evidence is “credible” (meaning, reliable and trustworthy).

In State ex re. Keegan M. v. Joshua M., 824 N.W.2d 383, 391-92 (Neb. Ct. App. 2012), the court ruled that evidence of abuse against an intimate partner in a prior relationship is enough proof of abuse for a Utah family court judge to grant custody to the non-abusive parent.

Impact on Parent-Time (also called Visitation)

If the court finds, by a preponderance of the evidence (meaning, it’s more likely true than not) that one of the parents has committed domestic intimate partner abuse, then the court’s order must provide for the safety of both the child and the victim parent. The court can order supervised visitation, which means that a responsible adult will be present for monitoring purposes when the abusive parent has visitation time with his or her child.

If the abusive parent completes therapy and classes, the judge may allow a transition period with some unsupervised visitation and eventually end the supervised visitation if it appears the abusive parent has changed.

Termination of Parental Rights

The termination of parental rights means that a parent loses all rights to both physical and legal custody of his or her child. Utah law allows for termination of parental rights where a parent has subjected a child to severe abuse, including abandonment, torture, chronic abuse, or sexual abuse, or has committed similar acts against the other parent. The termination of parental rights is fairly rare, and courts only use this remedy in the most extreme circumstances. This is also permanent, meaning a parent cannot regain parental rights once they have been lost.