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Wednesday, January 11, 2017

Child Custody Decisions in Cases Involving Domestic Violence: Guiding Principles



Courtesy of Principal Deputy Director Bea Hanson, Ph.D., of the Office on Violence Against Women
Child Custody Decisions in Cases Involving Domestic Violence: Guiding Principles

By Bea Hanson, Ph.D., Principal Deputy Director

Approximately one-third of all domestic violence incidents involving women take place in homes with children under the age of 12.  More than 15 million American children live in families in which domestic violence occurred at least once in the past year.  (See “Adverse Health Conditions and Health Risk Behaviors Associated with Intimate Partner Violence.”)

In 2013, OVW launched the Family Court Enhancement Project to help court systems and communities increase their ability to make sound decisions about child custody and parenting time.  Since the project launched, court systems in four sites have been assessing their structures and processes to identify ways they can reduce violence and trauma in cases involving domestic violence.  The four participating sites are Cook County, Illinois (Chicago); the state of Delaware (all three counties); Hennepin County, Minnesota (Minneapolis); and Multnomah County, Oregon (Portland).

OVW is supporting the sites in partnership with three technical assistance providers: the National Council of Juvenile and Family Court Judges, the Center for Court Innovation and the Battered Women’s Justice Project.  The sites are assessing procedures, practices and structures related to custody and parenting time in order to identify techniques and activities that enhance the resilience and well-being of children.

The project has now published 16 guiding principles that can benefit other courts and communities.  Guiding Principles for Effectively Addressing Child Custody and Parenting Time in Cases Involving Domestic Violence [external link] not only describes each principle but also illustrates how the sites are applying the principles in day-to-day operations.  The sites that are featured in the examples have agreed to offer guidance to professionals in other communities.  Both the sites and the strategies they are using are so diverse that other court systems are likely to take away a wealth of ideas on how to enhance their own processes and decision-making around child custody when domestic violence is a factor. 

The 16 principles are:

  • Courts and allied professionals should make decisions and issue orders regarding child custody and parenting time that effectively address domestic violence by accounting for the nature and context of the abuse and its implications for children and parents.
  • Courts should provide direct and timely access to the courts for child custody and parenting time relief, including temporary relief and enforcement of child custody and parenting time orders.
  • Courts should respond to the urgent need for relief in child custody and parenting time cases involving domestic violence by prioritizing these cases and deciding them without delay.
  • Courts should assure that judges have access to relevant court-documented domestic abuse history, consistent with governing ethical standards and in a manner that assures due process for all litigants.
  • Communities and courts should take steps to maximize parties’ ability to obtain domestic violence-informed legal advice and representation regarding child custody and parenting time matters.
  • Courts and providers of child custody and parenting time dispute resolution services should utilize processes that account for domestic violence and are safe, fair and accessible.
  •  Courts and professionals should assure that party participation in child custody and parenting time processes and services is informed and as voluntary or party-determined as possible.
  • Communities and courts should provide all parties in child custody and parenting time cases with access to information concerning:
  •  Available resources, including community resources and child custody and parenting time dispute resolution processes and services.
  • The relief available from courts, including the legal and practical effects of the relief and the risks and benefits associated with the relief.
  • The legal process and their rights, including the legal standards applied to child custody and parenting time decision-making, the meaning of legal terminology, the roles and responsibilities of judges and professionals and the parties’ rights and access to recourse and review. 
  • How to navigate court and parallel processes, including how to prepare for participation in those processes and how to avoid involuntary case dismissal.
  • Communities and courts should create opportunities for safe and informed disclosure of domestic abuse in child custody and parenting time matters.
  • Communities and courts should provide parties with access to support services, including domestic violence advocacy, in child custody and parenting time matters.
  • Courts and communities should recognize the critical and emergent nature of family law matters by providing sufficient and appropriate staff, resources and ongoing training to the professionals who manage these cases.
  • Courts should evaluate, on an ongoing basis, whether the publicly provided descriptions of child custody and parenting time processes and services match the services actually provided.
  • Communities and courts should evaluate, on an ongoing basis, the extent to which the custody decision-making processes and services provided effectively address domestic violence by accounting for the nature, context and implications of abuse.
  • Communities and courts should evaluate, on an ongoing basis, whether custody decision-making processes and services are consistent with these guiding principles and work collaboratively to address any deficiencies.
  • Communities and courts should ensure that their processes and services related to child custody and parenting time cases are consistent with evidence-based best practices.
  • Communities and courts should ensure that processes and services are truly accessible to everyone in the community, including those from under-served communities (e.g., immigrant populations, non-English speaking and limited English proficiency individuals ).

These principles are flexible enough to be tailored to the unique characteristics and needs of other communities, and they recognize that all stakeholders in the system – judges, attorneys, advocates and allied professionals (such as guardians ad litem, evaluators, mediators) have independent, yet intersecting, expertise and ethical and professional responsibilities that must be respected by stakeholders in other disciplines.

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