A Guide to Child Custody Issues

While most domestic violence experts advocate against co-parenting with an abuser as it’s not a safe or healthy option for neither children nor the protective parent, most U.S. family courts will default to shared custody to some degree, even when domestic abuse is present. 

“They [courts] are usually compelled by evidence that says this arrangement, in divorces, is better for the children, even though the research was looking at families where there was no violence, and [because of] a sense that parents are entitled to parent their children, regardless of the risks they pose to the children's non-abusive parent or the trauma they created in the past,” says Eryn Jane Branch, program director with the National Council of Juvenile and Family Court Judges.

In this guide, we’ll walk you through the basics of what protective parents should know about child custody court and how to prepare to go before a judge. 

Separation Will Mean Abuser May Escalate

When a survivor leaves an abuser, or lets on that they are preparing to leave, an abuser can escalate their abusive tactics. They feel they’re losing control at this point. It can be an extremely dangerous time for a survivor. 

Abusers often use children as a manipulation tool to keep control of the survivor. They could threaten that the survivor will never see the children again, that the abuser will make sure to get sole custody. They may threaten to kidnap the children or, worse yet, harm them, if the survivor dares to leave. 

Only a survivor knows when it’s safe to leave, which often has to be a carefully calculated decision. An abuser’s threats should always be taken seriously—abusers have killed nearly 900 children since 2008 during contested divorce proceedings.  

This kind of threat can be terrifying, which is why it’s vital to not attempt leaving without support. Three steps to take immediately:

1. Call. Reach out to a trained domestic violence advocate at a shelter near you. Ask for any and all help that’s available—safety planning, lay legal help for court proceedings, help to get an order of protection or assistance with emergency shelter if you need a safe place for you and your children to go when separating. 
2. Document. Write down, record or screenshot each threat or attempt for the abuser to control or threaten you or the children. This can be used if you’re considering filing for temporary emergency custody and can often be used as evidence later in court. 
3. Explain. Talk to your kids about what’s going on at a level appropriate for their age. Safety planning with your children can help them feel more in control of changes to come. Abusers are also skilled at manipulating children, so it’s important to prepare your children for what an abuser could possibly say and why it may not be entirely true. 

Should I Get a Domestic Violence Lawyer and How Do I Find One?

An attorney who specializes in domestic violence cases can go a long way in helping navigate the complexities of family court, but it can be difficult to find one. Your local domestic violence shelter may be able to recommend someone or may be able to provide a referral to free or low-cost legal help. 

Survivors can also explore these online options for legal advice and guidance.

• The Syms Legal Momentum Helpline provides free information and assistance to anyone facing legal issues surrounding gender-based violence. 
• Avvo.com provides a directory of domestic violence lawyers as well as legal guides for domestic violence survivors. Topics include “How Do I Get Sole Custody After Domestic Violence?” and “What Are the Possible Outcomes of a Child Custody Case?”
• Womenslaw.org has a wealth of information about legal issues as they pertain to domestic violence survivors. On the page, “Choosing and Working with a Lawyer,” you can learn if you do, in fact, need to hire a lawyer for your particular case, and important questions you should ask before you hire an attorney. Under the “Preparing for Court” tab, you can search for court forms that you may need in your particular state.
• The National Center for Victims of Crime allows you to search for legal resources in all states.
• State Specific: Safe Horizon offers free legal advice and information to those in the New York area through their Domestic Violence Law Project. Call 718-834-7430, x10, for more information. The California Victims Resource Center connects victims of crime in California with legal resources. The Arizona Coalition to End Sexual and Domestic Violence offers a legal advocacy hotline at 1-800-782-6400. Check this list of state coalitions to explore whether your state's coalition offers a similar service.

Questions to Ask a Lawyer About Domestic Violence

Make sure to interview a potential attorney before hiring them and ask how they can and have fought for abuse survivors in the past through the courts. Former attorney Barry Goldstein offers up some important advice for protective mothers looking to hire legal representation in “How Can Protective Mothers Find a Good Attorney?”

Examples of questions you might ask an attorney include, from WomensLaw.org:

• How long have you been practicing in this city/county? 
• What types of cases do you most frequently handle?
• How many cases have you handled in which you represented a domestic violence survivor?
• Do you feel as though domestic violence is relevant to my case? Would you introduce the topic in court?
• Do you feel as though my goals for my case are realistic? How would you go about accomplishing them?
• Please explain to me what laws are relevant to my situation.
• Tell me about your communication style and frequency. Do you prefer phone or email? How long do you typically take to respond to inquiries?
• Tell me about your fee schedule. What are all the fees I should expect to pay?
• Do you offer a payment plan? If so, what are the terms?
• What can I do to assist in my case to help keep fees down?
• Are you willing to put our agreement on fees in writing?

Representing Yourself in Court

Many survivors won’t be able to afford to hire an attorney, especially considering most abusers use financial abuse tactics to control money in the relationship and, by proxy, the survivor. In a survey on DomesticShelters.org, more than a third of survivors said they represented themselves or weren’t able to find free or low-cost legal help. 

To prepare to represent yourself in family court, preparation is everything. 

1. Know the laws. Research child custody laws in your state. In most cases, you will need to file for custody in the home state of the child, or where the child has lived for at least the last six consecutive months, according to WomensLaw.org.  
2. Download the right forms. Click on your state on this page at WomensLaw.org to find the forms you will need before going to family court. 
3. Compile evidence and witnesses. What is admissible in family court during a custody case varies by state, but it’s always better to be overprepared than underprepared. Compile any and all evidence you have of abuse which could include:

• Medical reports from injuries you or your child sustained from the abuse
• Police reports, proof of orders of protection
• Statements from a physician, therapist or school counselor detailing how the abusive parent has affected their child’s health
• Objects or pictures of objects from your home that an abuser broke,
• Pictures of your home showing disarray following an incident of violence
• Pictures of weapons the abuser used against you
• 911 recordings, which you can subpoena 
• A personal diary in which you recorded the abuse
• Printouts of text messages or emails which show any abuse or threats
• Witnesses who can testify that they saw abuse 
• A log showing a pattern of specifically coercive and controlling tactics (in addition to or in lieu of physical abuse).  Consider tactics during the relationship and tactics since the separation.  
  

4. Know when you’re due in court. This might seem obvious, but if you miss a court date, or a court date was changed and you weren’t made aware (it happens), an abusive partner could take advantage of that, or even try to use it as a reason why you shouldn’t have custody. Most jurisdictions maintain an online “court docket.” It contains your case number, important dates, motions filed and other records of your proceeding. You’ll want to check in on your case periodically to stay on top of the information posted in the docket.

5. Arrive early and present a professional appearance. It is no doubt a stressful time, separating from an abuser and fighting for custody. But in court—even if the hearing is virtual— it matters that you, the protective parent, come across as the most responsible party. Be early to arrive or sign in virtually and, as much as possible, stay calm, speak politely, avoid personal attacks of the abuser (in fact, do not speak to the abuser at all) and present your information to the judge. If you’re nervous going into court, ask your local domestic violence shelter if they would provide an advocate to accompany you. Many will, and this can help you feel more secure and confident facing an abuser in court. 

6. Don’t minimize. Don’t be afraid to mention to the judge that you are afraid of your ex-partner and why.  Also, this  is a time to talk up your value as a parent—don’t forget the obvious information that often gets minimized like the fact you did most of the child care, you are the one who knows the child’s providers or the child comes to you when she needs help.  All of this establishes you as the primary attachment figure.

6. Take safety precautions. When the hearing is complete, if it has taken place in person, let the abuser leave first so they cannot follow you. If you feel at risk of being harassed by the abuser, ask a sheriff to walk you to your car. If you have a gut feeling the abuser will try to contact you or your child after court, it might be a good idea to stay somewhere safe after a hearing—a friend’s house, a motel or a shelter. Turn off tracking information on your phone when doing so.  

What Types of Physical Custody Can You Get?

When it comes to physical custody, there are typically five main variations of custody a parent can secure. Of course, we need to disclaim once again, laws and definitions may vary by state. 

Sole Custody. This is complete physical and legal custody of the child. This means the child will live with that parent and that parent will make the major decisions about the child including where they go to school, what doctor they see and what activities they might do after school. 

Sole Physical Custody. Also sometimes called “residential custody.” The main difference in this ruling is that the parent awarded sole physical custody will have to share legal custody with the other parent. The child will stay with the parent granted this for at least 50 percent of the time, if not more.  

Split Physical Custody. Both parents will share the responsibility of housing the child in this scenario, though not necessarily equally, and legal custody may only be awarded to one parent.  This is typically granted in an amicable split. 

Joint Physical Custody. This is similar to split physical custody but with more accommodations to ensure the child or children have equal time with the parents. Usually, a schedule is worked out between parents and a school district is agreed upon together.  

Physical Custody with Visitation. In this agreement, one parent is granted sole custody and the other parent, who may not have a suitable living situation yet because of a move or other circumstances, is granted a set time and number of hours to see their child. 

Legal custody can also be shared or joint and will be decided at the same time as physical custody. 

Avoiding Legal Abuse

An abuser may use the legal system to continue their tirade of power and control. They can do this through various tactics of legal abuse, but when it comes to custody, they may try to paint the protective parent as unfit, claim parental alienation or drag out court proceedings indefinitely. 

Parental alienation represents the idea that one parent is denigrating the other parent to the child in order to undermine the parent-child relationship. It is a tool abusers use to try and deny that their children are afraid to come visit them because of their abuse, but rather claim the protective parent is “brainwashing” them into avoiding the parent. 

Some protective mothers also experience a type of parental alienation when the abuser tries to convince the children the protective parent is purposefully harming their child-parent relationship.  

In either case, it makes custody proceedings messy, and based on research, judges are more likely to side with abusive fathers in these cases. It’s important to work with an attorney who has experience in domestic violence cases if an abuser claims parental alienation. 

In the case of an abuser trying to position the protective parent as unfit, the best defense is meticulous record-keeping. Being able to predict what the abuser may accuse you of (e.g. “She is on a prescription for depression”) and then having a piece of evidence in place to counter this—say, a note from a therapist detailing how this diagnosis is managed without issue—can give a survivor the upper hand, but in many cases, an abuser won’t stop. They may file false reports with child protective services or lie about a survivor’s drug or alcohol use. This can be infuriating but try to remain calm and position yourself as the most responsible parent. Follow the custody agreement, return communication promptly, make sure children don’t miss school or appointments and document everything that the abuser is doing to try and thwart this. 

Still, abusers have been known to drag out court hearings indefinitely, file an obscene amount of motions or even sue the protective parent for reporting abuse (which is not legal in many states due to anti-SLAPP laws). This is known as abusive litigation and it’s something a protective parent can bring up with a judge in court. Again, if possible, consult with a lawyer about the best way to do this. 

Creating a Custody Agreement with an Abuser

Despite the research that shows co-parenting with an abuser places children in jeopardy, many judges continue to allow abusive parents custody of their kids. When this happens, the protective parent will likely experience stress and anxiety handing over their children to an abusive ex-partner. 

What can you do if you’re the protective parent in this case? Start by creating an airtight co-parenting agreement. Using an attorney or court mediator, create an agreement that the abusive ex-partner cannot deviate from. Family law attorney Linda Kerns shared with DomesticShelters.org three tips for doing so:

1. The custody arrangement should be self-executing with no room for ambiguity or interpretation. For instance, if mom is going to have the kids on Christmas Eve and dad is going to have them on Christmas day, specify exact times and instructions on pick-up, including the exact time children will be returned to the other parent. “Anyone looking at the arrangement should know where those children are any date and time of the year,” says Kerns. The specificity will help prevent an abuser from using the children as a form of control.
2. If possible, pick-ups and drop-offs should be at school or daycare, or somewhere that the parents do not encounter each other. This will lessen the possibility of harassment or intimidation by either parent and make this process less stressful for the children.
3. All communication should be in writing, preferably by email or programs designed for parents that capture all communication. Try an app like Our Family Wizard or Talking Parents. “All communication is done through these apps so it’s as easy as email, but no one can alter it later and there are time stamps to show when someone reviews it,” says Kerns. Phone calls from the other parent while the children are in your custody are another time when the abuser can harass the other parent. Depending on the age of the child, Kerns says consider giving the phone directly to the child when the other parent calls so there is no possibility for harassment. Or stick to written communications, such as text or email.

Petitioning for a Custody Change

If there are new allegations of abuse after the custody order, if the abuser is arrested or violates an order of protection, if there is evidence the abuser is using illegal substances or if there are threats to your or the children’s safety, bring these things to a court’s attention. Modifying custody can be complicated, so it’s best to get advice from a lawyer when doing so. 

For additional support in dealing with shared custody with an abusive parent, consider attending the annual Battered Mothers Custody Conference, a gathering of protective parents and legal experts working to keep children safe from abuse.