Domestic violence affects millions of Americans every day. Courts have now become more familiar with domestic violence and the detrimental consequences it has to victims, families, and society. Accordingly, Courts factor the presence of domestic violence in households when making child custody and visitation decisions.
There was a time when the Courts did not have to take into account domestic violence when making determinations of child custody. However, Domestic Relations Law Section 240(1)(a)(4) was revised in 1996 and now the Court must consider the effects of domestic violence when making decisions about custody and visitation. Specifically, domestic violence against either a parent or a child, even if such violence was not committed in a child’s presence, is factored by the Courts.
Although this law requires that domestic violence be considered in custody and visitation cases, only specific and identifiable instances of domestic violence will be considered. First, you need to know that domestic violence is not only actual physical violence but includes verbal, emotional, mental, economic, or sexual abuse as well. If you or your children have been victims of domestic violence, such instances must be proven by a preponderance of evidence in order for the Court to consider specific instances of domestic violence in your custody or visitation proceeding. This means that the Court must find that it is more likely than not that the instances of domestic violence occurred.
If you or your child is a victim of domestic violence, it is important to be upfront with the Court and your lawyers. Provide them with as much information as you have regarding the abuse that you’ve suffered. Especially useful is proof of the abuse, such as police reports, hospital reports, medical reports, photos of injuries, and witness statements, including affidavits from others who have witnessed your abuse. In addition, it is recommended that you document any and all instances of domestic violence committed against you by your abuser with as much detail as possible. Finally, inform your attorney or the Court right away if you abuser violates any orders of protection you have in place. The more credible information you provide to the Court, the greater the chance that the Court will render a decision that will help protect you and your children.