Domestic violence between intimate partners and spouses has become a prevalent problem in the United States. According to the Center for Disease Control and Prevention,1 in 4women and 1 in 7 man experience physical violence by an intimate partner at some point in their life.
Unfortunately, caught in the crossfire of domestic violence are the children. Exposure to domestic violence at home will inevitably result in emotional damage and pose adverse effects to these children as they grow up. Children who witness domestic violence are also more likely to suffer an increased risk for various mental health issues, such as:
- post-traumatic stress disorder;
- aggressive behavior;
- impaired development;
- difficulty interacting with peers;
- academic problems; and
- substance abuse.
Finally, and of significant concern, children who are exposed to domestic violence often become victims of violence themselves.
Lawmakers and the courts play a vital role in addressing the disturbing problem of domestic violence by providing for and administering the grant of legal reliefs to victims of domestic violence. One of these legal reliefs is the grant of temporary custody over children as an ancillary to a restraining or protection order.
What does Child Custody Cover?
Custody of a child is typically understood in two forms: physical custody and legal custody.
Physical custody of a child refers to a form of parental rights to have the child or children live with the parent or guardian. On the other hand, legal custody of a child refers to parents’ rights to make decisions about certain aspects of their child’s (or children’s) lives (i.e. medical care, education, etc)
How Does a Restraining Order Affect Child Custody?
In general, a restraining order refers to a judge’s short-term order forbidding certain actions until a full hearing can be conducted. Hence, a restraining order is usually ancillary to a civil or criminal case. However, in the context of a child custody case, restraining orders that either grant or remove custody over one’s child are most typical in cases involving domestic violence.
Typically, restraining orders in domestic violence cases are those issued by a state court requiring one spouse or partner to stop harming their spouse or partner. Other terms for restraining orders include protection order, injunction, order of protection, or some other similar names.
While restraining orders grant or remove custody, civil protection orders enable victims of violence to petition for legal means to prevent contact from a spouse or partner. These include stay-away orders, no-contact orders, vacate orders, property rights and access orders, and orders for child support, monetary support, and relief for the victim, including medical and counseling bills and orders for treatment or counseling for the defendants.
The typical form of relief granted in domestic violence cases with respect to custody, is the grant of temporary custody over children. Usually, temporary custody is granted to the parent who is a victim of domestic violence committed by the victim’s spouse or partner.
Temporary custody is not the same as the grant of permanent custody. Permanent custody is an issue in other legal proceedings that are civil in nature, such as divorce, establishment of paternity and filiation, and others where the care and well-being of children are involved. In deciding such cases, courts would normally follow the applicable state laws on custody. A common and prevailing feature of state laws of permanent custody is that they employ the “best interest of the child” principle. This principle is generally defined as the standard employed by courts when deciding what type of services, actions, and orders will best serve a child and who is best suited to take care of a child.
While courts are also guided by the “best interest of the child principle”, in the grant of temporary custody over children prior to a restraining or protection order in domestic violence cases, the priority is to provide timely and effective relief to victims of domestic abuse.
For this reason, the Office on Violence Against Women (OVW) of the US Department of Justice, through its Family Court Enhancement Project, initiated and published the “16 Guiding Principles for Effectively Addressing Child Custody and Parenting Time in Cases Involving Domestic Violence”. Relevant to child custody in domestic violence cases, the guiding principles provide that courts, when deciding and/or issuing orders regarding child custody, must:
- Make decisions and/or 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; and
- 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;
The Impact of Restraining Orders on Custody Under Different State Laws
At the state legislative level, a survey of state laws conducted by the American Bar Association Commission on Domestic & Sexual Violence revealed that most states have already passed legislation that not only defines and punishes “domestic violence”, but also provides relief in the form of temporary custody and visitation rights over children, as ancillary to the grant of a restraining or protection order.
- Under Nevada law, an alleged victim of domestic violence committed by an abusive spouse or partner may apply for “temporary order for protection against domestic violence” and be awarded temporary custody over his or her minor child.
- In Alabama, state law does not only award temporary custody under similar circumstances, but also prohibits the alleged abuser from removing any child or children away from the other parent or any person who has legal custody over the children.
- California law, aside from granting temporary custody to a spouse or parent as part of the protections under a regular Domestic Violence Restraining Order (DVRO), also empowers courts to grant temporary custody under an emergency protective order. This is usually a precursor to a DVRO but lasts for a shorter period than a DVRO.
- In the District of Columbia, a civil protection order that grants temporary custody to a parent or spouse may also regulate custody arrangements and visitation rights of the alleged abuser, who is required to prove that his or her visitation will not endanger the child or significantly harm the child’s emotional development.
Finally, at the federal legislative level, the Violence Against Women Act (“VAWA”) provides further protection to victims of domestic violence. The VAWA treats the act of crossing state lines by any person against whom a protection order has been issued by state courts, and in doing so violating said protection order, as a federal crime. Furthermore, the VAWA also mandates that state courts and law enforcement agencies recognize and enforce protection orders from other U.S. jurisdictions as if they were issued in their jurisdiction.
The grant of the right to temporary custody over children as part of a restraining or protection order is just one of the many possible reliefs that the law affords to victims of domestic violence. It is crucial that lawyers must be well-versed with the various state and federal rules governing such relief so that they may give timely and appropriate legal advice to those who need it the most.
This knowledge will also contribute to better enforcement of domestic violence statutes in the hope that the adverse effects of domestic violence–not only for victims but also for children–may in the very least be mitigated.