Domestic Violence, Child Abuse, & Child Custody Laws
Child abuse may arise in many forms. A parent hitting or kicking a child is child abuse, but so is a parent hitting or kicking their spouse in front of their child. Child abuse may be any act or pattern that harms the child’s health or safety, such as withholding food and shelter. Divorcing individuals with children experiencing domestic violence will benefit from the help of a lawyer experienced in divorces involving child abuse. Local bar associations and domestic violence shelters may also provide free legal resources or referrals to low-cost legal services.
Types of Child Abuse
Beating or otherwise making violent contact with a child is only one form of child abuse. Other types of abuse include sexual abuse, neglect, and emotional abuse. Emotional abuse may appear in the form of critical or threatening comments meant to affect a child’s emotional wellbeing. It may also appear in instances in which a child witnesses domestic abuse, especially physical abuse, between their parents. A behavior that does not fit neatly into a category above may still be considered child abuse if it rises to a certain level of harm to the child.
Emergency Orders and Restraining Orders
Although state law varies, an individual with a child in danger may usually receive a temporary restraining order (TRO) from a domestic violence court within an abbreviated period of time and without a full court hearing or having the alleged abuser in the courtroom. TROs may protect a child from harm by the alleged abuser in a variety of ways, including preventing the alleged abuser from contacting or interacting with the child. However, TROs only last for a few days. If the danger still exists after the TRO expires, an individual may seek a long-term restraining order that requires an extensive hearing and allows the alleged abuser to argue against the order.
If harm or potential harm to the child is apparent but not necessarily an emergency, an individual can ask for an emergency order in family court. If a divorce is already pending, the motion for an emergency order must be filed in that case. The judge may have the individual petitioning for the order sign a sworn statement about the alleged abuse or hold a full evidentiary hearing in which both parties will have the opportunity to present evidence. If the judge finds evidence of abuse or other harm to the child and grants the emergency order, this may affect short- and long-term custody and visitation arrangements.
Domestic Violence and Child Custody
A finding of domestic violence, whether directly perpetrated on the child or not, will most likely affect child custody. A judge will gather evidence, including other findings of domestic violence in domestic violence or family court, and determine what is in the best interests of the child. The judge may also consider evidence from social workers or other experts and appoint a guardian ad litem to represent the best interests of the child. Even if domestic violence has occurred, a judge will likely award some form of visitation to the accused parent unless they find serious threats of continued harm to the child. An individual concerned for the safety of their child or themselves may ask the court to include additional precautions in the parenting plan, such as supervised visitation or a public meeting place.
Divorcing spouses may be tempted to imply that their spouse is abusive in order to influence child custody decisions. There may be serious consequences if an individual is revealed to have fabricated child abuse allegations or coached their child to say certain things to a doctor, therapist, social worker, or other individual interviewing the child. If the basis for a restraining order, emergency order, or other finding of abuse turns out to be dishonest, the individual who supplied the false information may face sanctions related to parenting time or attorneys' fees. In rare instances, an individual may face jail time.
Sometimes parents are wrongly accused of fabricating child abuse allegations, especially if the allegations first appear in the context of divorce. Know that so long as you are being honest, you are well within your right to protect your child, even if a social worker or judge expresses doubts about your credibility.
