A Judicial Guide to Child Safety in Custody Cases

The following link is to: “A Judicial Guide to Child Safety in Custody Cases” written by the National Council of Juvenile and Family Court Judges for judges.

(This manual which was written for judges is helpful for parents to read to gain an understanding of what the judge would be able to do for domestic violence survivors and their children if that judge understood domestic violence/child abuse. The difficulty is that most judges are not equipped with the training to implement this information. That is why it is crucial for the parents to educate the attorney and judge as they present their cases.This information could possibly be brought into court as expert opinion. The research relied upon is footnoted in the guide.)

This tool is designed to maximize a child’s safety as you determine issues of custody and visitation and can help you:

Assess whether a child or parent is at risk for physical, emotional, or mental abuse.
Review the evidence so that the safety of the child is the primary factor in determining his or her best interest.
Evaluate safety risks at various stages of a case, from initial through post-disposition.
Make findings that explain and prioritize safety concerns.
Draft custody and visitation orders that maximize family safety.

(There are 14 cards at the end of the guide containing a summary of each section. The authors suggest that you first read the cards as an introduction to the topics addressed. This supplement, to which the cards are keyed, offers additional information and suggests further resources at the end of the guide, and in footnotes. To read the actual cards, go to the above link. Here are the highlights of each card:)

Card 1- Children, Abuse and Custody

Abuse committed directly against a child, or violence committed in the child’s presence, can make a child more vulnerable to a variety of adverse consequences. Some signs can be:

Child’s behavior or school performance.
Eating or sleeping habits and other physical symptoms.
Change in friends or drug and alcohol use.
“Perfect” behavior while in the presence of the abuser.
Acting like the parent or attempting to protect other family members.
Anger toward one or both parents.
Abusive behavior toward one parent, usually the at-risk parent.

Emotional abuse can be as damaging as physical abuse in destroying the child’s self-confidence and self-esteem. Being in the presence of offensive and abusive behavior is not in the best interest of the child. Research shows that children who have been subjected or exposed to violence in their homes have a better chance of minimizing the harm sustained to them if all systems intervene, maximizing their exposure to supportive roles with caring adults, especially the non-violent parent, and minimizing the exposure to the violence and its accompanying behaviors.

If your findings of fact support the conclusion that abusive behavior has occurred in the presence of the child, or toward the child, consider ordering no visits or only supervised visitation with clear guidelines and controls and appropriate interventions for the abusive parent. Monitor progress and ease contact restrictions if you determine that the interventions are proving effective and if safety permits. In the alternative, limit visitation until conditions are met.

“….No psychological test exists that can accurately determine whether a parent is abusive.”

Card 2 – Abusive Behavior & Evidence of Risk

Abusers often will use only as much coercion as is necessary to maintain control over the other parent or the child. Some common methods of control that may come into evidence are:

Emotional Control:

Engaging in unpredictable or inconsistent behavior.
Not speaking to family members for extended periods.
Humiliating or undermining a parent in the presence of the children.
Threatening to harm children, commit suicide, or inflict other harm.
Using immigration status to maintain control and induce fear.
Not adhering to time limits on visitation, or threatening not to return a child.

Financial Control:

Limiting the other parent to an allowance or requiring accounting for funds spent, or disconnecting utilities.
Refusing to pay children’s expenses despite adequate financial resources.
Forbidding the other parent to work during the relationship but insisting upon it after separation.
Demanding an accounting of how child support is used – or insisting upon paying vendors directly rather than make payments to the custodial parent.

Physical Control

Confining the other parent or the child (in a car, a room, etc.)
Stalking a child or parent, which may include text messaging, calling, electronic monitoring, and the like.
Destroying property, including injury or threats of injury to pets.
Hitting, slapping, kicking, punching, pushing, strangling, or any other acts of physical violence.

Sexual Control:

Insisting upon strict adherence to gender roles or making sexually inappropriate remarks, particularly in the presence of the child.
Demanding sex.
Denying privacy to the other parent or the child, e.g., demanding that the bathroom door be kept open.
Insisting that the partner engage in sex with others or engage in humiliating practices.

Remember: It is important to get an overall picture of the family’s dynamics and history. Look for behaviors or patterns of behavior that may have emerged over time.

Card 3 – Analyzing the Evidence

Cross-allegations of abuse are not uncommon. Sometimes, it is the abusive parent who raises issues of abuse in an effort to discredit the at-risk parent. To sort through this type of testimony,

Determine whether any alleged physical act was part of a pattern of emotional, physical, financial, or sexual abuse.
Determine whether any alleged physical acts were done in response or in reaction to other serious forms of abuse and control, including financial control, isolation, physical violence, sexual abuse, or humiliation.
Consider whether one parent inflicted more harm.
Consider the impact of the alleged abusive behavior on the other parent or the child.

As you assess bias, motive, and the perspective of the parties, you will be tempted to consider the in-court behavior of the parties as evidence of whether abuse has occurred. Do not assume that either an abusive parent or an at-risk parent will act or respond in uniform, stereotypical, or predictable ways.

(The guide goes on to list possible behaviors of the abusive parent and then the at-risk parent.)

Card 4 – Respectful Interaction & Safety Provisions

Remember: The attorneys appearing before you and the third-party professionals whom you rely on for information may not be trained to detect or elicit evidence of abuse.

The at-risk parent or child may be re-traumatized by the presence of the abusive parent, which may affect how and whether their testimony is presented. Techniques exist that can help you get the information you need and control the presentation of evidence. Consider using these even when one or both parties are represented by counsel.

If a parent is unrepresented, explain generally what rules of evidence and rules of the court are, and the fact that they apply in this case.
If a parent is unrepresented and you suspect an imbalance of power, consider having the unrepresented party direct questions to you.
If both parents are unrepresented, do not allow the abusive parent to question the at-risk parent directly.
Explain the ground rules for presentation of the case (e.g., no interruptions, each side will have an opportunity to speak and rebut, time limitations, etc.).
Explain that represented parties are permitted to speak if asked a question by you, or either attorney, depending upon the type of hearing.
Make suggestions about how the parent can comply with the ground rules (e.g., take notes and address issues when it is that parent’s “turn”).
Ask specific questions about allegations of abuse since the at-risk parent might be too fearful or overwhelmed to respond to open-ended questions.
Enforce ground rules.

Card 5 – Establishing Jurisdiction

If a parent has relocated to escape abuse, it is important to identify the reasons behind the relocation as you ascertain jurisdiction.

(This card contains questions to ask to determine jurisdictional issues.)

Card 6 – Temporary & Emergency Orders

Remember: Issues of safety may exist that need to be addressed between the time of initial filing and the final order.

At this stage of the case, there may be very little or no evidence regarding safety issues, but safety issues may nonetheless exist. If a temporary order will be in place prior to the issuance of the final order, you may wish to take steps to ensure the safety and best interest of the child.

(This card contains a list of what the judge can do to ensure the safety of the child such as appointing an attorney for the child, order an interim safety assessment, and more. This card also contains reasons for an emergency order for custody.)

Card 7 – Initial Filing

Remember: Determining whether safety is an issue is the necessary first step in all custody and visitation cases.

A few factors that might require you to explore the family’s safety issues further include:

Was cruelty or abuse alleged in the pleadings?
Is either parent seeking sole physical or sole decision-making authority over the child?
Has either parent ever applied for a civil protection order against the other party or had a protection order entered against him or her?
Are there any prior or pending court actions concerning any family member (criminal, child support, truancy/delinquency matters, or other)?
Have there been any arrests or court proceedings that involved crimes against people or animals or destruction of personal property?
Has child protective services ever been involved with these parties?
Has either parent requested that information be kept confidential, particularly from the other party?
Are there any other indications that a child or parent could be unsafe?

(This card also contains suggested measures the judge can take if there are indicators of abuse present.)

Card 8 – The Pretrial Process

Remember: Abusive parents often use the pretrial process as a tool of coercion and continued abuse.

Abusive parents often file excessive motions, requests for discovery, and other pleadings so that the at-risk parent must make frequent court appearances or incur increased expenses.

You can protect the at-risk parent and control litigation by:

Permitting the at-risk parent to appear or be available to counsel by telephone or videoconference.
Sanctioning parents who refuse to produce discovery, particularly financial information.
Requiring that no hearing in the case be scheduled without your review and approval.
Awarding attorneys fees, compensation for lost wages, and other financial sanctions to the parent required to respond to frivolous or excessive pretrial motions.

(This card also contains a list of ways the judge can maximize safety for the child and the at-risk parent. An example would be to appoint only professionals who are competent in abuse and safety issues.)

Sometimes ex parte orders are requested by the coercive parent who is seeking to maintain control over the other parent or the child. When presented with an ex parte request for custody, take steps to explore whether there are ulterior motives for filing the ex parte motion.

Card 9 – Mediation

Remember: Mediation is generally not appropriate where safety issues (domestic violence, stalking, coercion, or sexual assault) of a parent or child are identified.

Many jurisdictions mandate mediation of child custody and visitation disputes; some exempt cases where safety to one parent is a factor.

Although safety risks, abuse, or coercion might not be identified at the point of initial filing, risk issues might arise as the case proceeds. You should examine whether cases labeled “high-conflict” are appropriate for mediation, since many high-conflict cases have abuse or coercion as a component.

(This card includes options for the judge concerning mediation if abuse of a parent is a component such as amending any standard order to remove the obligation for parties to mediate. Another option is to use only mediators competent in abuse/safety issues. It also includes a list of safety factors if the at-risk parent insists upon mediation.)

Card 10 – Settlements & the Uncontested Case

Remember: An agreement might have been coerced, even though the matter appears to be uncontested.

(This card contains warning signs that the agreement was the result of coercive control. It also lists what the judge can do if the agreement seems unreasonable or there is suspected issues of unequal bargaining power.)

Card 11 – The Hearing – Findings of Fact

Actively obtaining the information you need to make an informed decision does not compromise your neutrality.

Factors to consider:

Have the pleadings raised emotional or physical abuse issues?
Has a parent or a third-party neutral or evaluator identified emotional or physical abuse, sexual assault, or stalking?
Do any identified mental health or substance abuse issues indicate a lack of safety in the home?
Have you independently determined from file review, evidence, discovery or information from criminal or other civil cases that safety issues exist?
Has one of the parents engaged in any strategies to protect himself or herself from abuse?

Remember: All jurisdictions require abuse to be considered as part of a custody determination.

Determining which parent is or historically has been the primary caregiver is important to the decision-making process. Interruption of a child’s routine or bonding may have negative consequences to development and well-being. You may wish to ask:

Which parent is or historically provided the day-to-day care for the physical and emotional needs of the child?
What parenting routines and rituals have fostered nurturing of the child? (e.g., What are the bedtime routines? Who prepares the child for school or day care each day? Has the involvement in school extracurricular activities been nurturing?)
How does the parent console the child?
If the child is closely bonded to one parent, was the bond created from traumatic experiences?
Is the child afraid to “misbehave” with one parent?
Does the parent view his or her role and time with the child as an entitlement or as a privilege?
What impact has any emotional or physical abuse of either a child or the other parent had on the child’s behavior and development?
Will an award of joint custody result in the child’s continued exposure to abuse of either the child or the other parent?

Card 12 – The Hearing – Conclusions of Law

Remember: In all custody and visitation decisions, be sure to support your conclusions and judgement with appropriate findings of fact.

In applying your jurisdiction’s best interest standard to your conclusions of law, keep in mind:

Whether you need an expert trained in abuse and control in order to determine the appropriateness of ongoing contact between the child and parents.
Whether you should order preconditions to visitation.
Whether the abusive parent has strictly adhered to court orders.
Whether you need additional information in order to make appropriate findings of fact and conclusions of law.

Even if you determine that the evidence does not trigger a presumption of custody, it may support a conclusion that contact with one parent is not in the best interest of the child.

Joint physical custody and joint decision-making authority are not appropriate where there is evidence of one parent emotionally, sexually, physically, or mentally abusing or controlling the other parent.

“Friendly parent” statutes are usually not applicable where one parent has abused the other.

Although it is one of the most difficult decisions you make, consider ordering no contact between a child and parent, even on a trial basis, when:

Either the other parent or the child has been physically abused.
One parent has a history of non-compliance with court orders.
One parent refuses treatment for substance abuse, mental health, or abuse issues, and fails to address the issues that create a safety risk for the child.
There is an existing no-contact order between the parent and child and there has been no improvement in the underlying behavior that formed the basis for the no-contact order.
Contact with the child places the other parent at high risk of further abuse.
One parent is using the children to continue the abuse of, or undermine the authority of, the other parent.

Card 13 – Drafting the Order

Remember: Precision and attention to details minimize the need to return to court and can enhance safety by reducing the need for contact between the parents.

When safety of a parent or child is an issue:

Draft an order that eliminates or minimizes the need for contact between the parties.
Make sure schedules and arrangements for exchange of the child are drafted with detail as to time, place, and length of stay.
Include holidays and vacation schedules in the order.
Allow no detail to be left to negotiation between the parents.
Name a reliable contact for emergency communication.
If visits are to be supervised, detail the rules of supervision (e.g. the conditions under which the supervisor may terminate visits, etc.)
Where safety is an issue, state the concern in the order.
Draft the order so that, in the event of a dispute, police and other third-party professionals will understand that it is designed to protect the child and the at-risk parent.
Appoint parent coordinators and other professionals only if they have been well-trained and are competent in abuse and safety issues.
Remember that best interest of the child does not always equal access by the parents, particularly when safety is an issue.
If relocation is an issue, consider having your order anticipate a change in visitation upon relocation.
If the child is to have a new residence, include visitation details if the location of the child’s new residence is known at the time of your decision and is not confidential.
If the child’s residence is confidential, ensure that it remains confidential and set out a specific plan for professionally supervised visitations and exchanges.
Support your order with adequate findings of fact and conclusions of law.

Remember: Make certain your order does not conflict with the terms of an existing protection (or other) order.

Card 14 – Enforcing the Order

Enforcement of orders and holding abusers accountable for violations is critical to assuring that the child and the at-risk parent remain safe.

You can help keep children and the at-risk parent safe by:

Insisting upon strict compliance with all provisions of the order.
Holding periodic reviews where the at-risk parent need not be present in order to ensure compliance.
Modifying the order if the original terms had a detrimental effect on the child or at-risk parent.
Compensating the non-offending parent through awards of attorney’s fees, compensation for lost pay, etc.

Remember: Not respecting rules and boundaries is part of abusive behavior, and abusers often use non-compliance with orders to continue control over the child and the other parent.

Sometimes it is the at-risk parent who violates the court order. If you have identified the at-risk parent and that parent violates the order, you should inquire:

Was the at-risk parent or a child ever threatened explicitly or implicitly?
Has any incident occurred since the order was entered that made the at-risk parent or child feel unsafe?
Was the violation a response to the threat or otherwise an attempt to protect the child or the at-risk parent?
Was the violation an inappropriate response to the abusive parent’s non-compliance?

Even if you find that the information you receive is not sufficient to excuse the non-compliance, the responses may assist you in determining whether some revision of the order is necessary to protect the at-risk parent or child.