Ask Amanda: What Do I Do After Losing Custody of My Child?

Q: My ex-husband, who has long been abusive, just won sole physical custody of our child. The judge said my allegations of abuse weren’t credible and when I tried to bring up more examples and more evidence, I was accused of trying to alienate my child from their father. In the end, the judge says it was found to be “in the best interest of the child” for them to stay with my ex. There are so many things wrong with this, but the only thing I want to concern myself with right now is what I do next. How do I get my child back? – Desperate Mom

Desperate Mom,

As a mom myself, I can feel the anguish of this situation. Most moms want nothing more than to keep their children safe and thinking about them in the custody of a possibly dangerous or violent abuser is nearly unbearable. Though you didn’t specify, hopefully, sole physical custody still means you are allowed visitation with your child on a regular basis. In any case, it won’t be full-time, and that’s got to be excruciating. 

There are ongoing efforts to reform the family court system nationwide to make them more aware of the implications of allowing abusive parents to have custody of their children, but unfortunately, many family court judges are still awarding 50/50 custody with abusers. And some, like what you encountered, are siding with the abusive parent over the protective one. 

Your abusive ex is not the first to benefit from this concept of “parental alienation” which is often used by abusers to manipulate the court system. Although abusers can also attempt to alienate children from a protective parent, abusers will try to leverage “parental alienation syndrome” as a “disorder” that a protective parent has, based on some arguably questionable research by a psychiatrist in the 1980s (read more here). 

I spoke with advocate and former attorney Barry Goldstein, who is also part of DomesticShelters.org’s editorial advisory board, for advice on your case. When I mentioned the alienation allegation, he told me a story about a mom who made headlines for fighting off a mountain lion that was attacking her child. She saved her son’s life. 

“She wasn’t alienating the mountain lion,” points out Goldstein. “It’s a mother’s instinct to protect their child.” Goldstein has personally represented many mothers in your position during his career. Courts often make false assumptions, he says, that women who bring up abuse are acting out of vindictiveness. These judges lack adequate knowledge of domestic violence dynamics and are unaware that statistics show abusive men are 16 times more likely than women to make up false allegations of child abuse. 

So I can imagine how frustrating it is to not be believed. I hope that there is someone you can turn to in real life for support right now—a therapist with experience in domestic violence would be ideal or you can also call on an advocate at a domestic violence helpline who will lend an empathetic ear whenever you need it. They may also be able to help connect you with additional help in your area, such as a trauma-informed counselor or legal resources that could help with your case. 

Now, let’s talk legal strategy. First, the good news: “Custody can always be reconsidered,” says Goldstein. But here’s the not-as-good-news: You can’t file for an appeal or seek modification to the judge’s decision without showing a change of circumstance. Simply saying, “I don’t agree with the judge,” isn’t enough reason.

“One thing I tell protective mothers is to think of the judge’s decision as a prediction,” says Goldstein. “What the judge is saying is ‘I think this arrangement is going to work best for the child.’ And we know that’s not likely. And so, what we want to do is prepare for a time when we can go back to court and get some kind of modification.” That means that you need to start keeping a record of any issue or problem that arises while your child is with their father. 

“One of the things you want to record is how the child is doing now [with the abusive parent] compared to how the child was doing with the protective parent,” says Goldstein. Look for behavioral changes, changes in their school performance, or anything the child might be complaining about at home. It’s possible the child is going to be silenced by the abusive parent, but also note that as well. Anything that denotes a change in the child’s demeanor should be recorded. 

The next thing, says Goldstein, is to record the father’s behavior. 

“Is he interfering in safe visitation with you or phone calls to the child? Is he coming late to pick up the child, harassing you or sending you threats? Is he engaging in behavior to undermine the relationship between you and your child, such as telling the child negative things or calling you names?” notes Goldstein. 

If your ex suddenly starts drinking or doing drugs, or escalates in these behaviors, that could be considered a change in circumstance. If your ex loses his job or decides to move, that could also be a change in circumstance. Basically, you need a reason to file a motion in court to reevaluate custody, so look for that. It may take six months or more of waiting and documenting before you have a solid case to bring before a judge. Going back too soon to disagree with a judge’s ruling likely won’t win you any favor, unfortunately. 

“You want to show that you tried to make the [custody] order work,” says Goldstein. “If the court thinks you haven’t tried, that's going to make it harder.” 

And while you can represent yourself in court, getting an attorney who is trained in domestic violence cases like yours would be the most advantageous. Goldstein warns that there are many technical evidentiary rules that a layperson likely won’t know when going into court, such as how you frame questions so they’re allowable. 

It may also help to connect with other mothers facing a similar ordeal. Keep an eye out for the dates of the 2023 Battered Mother’s Custody Conference where moms and experts from across the country convene to talk about this very topic. 

Best of luck to you and your child.