22 Jul 16

Can he get custody if he has a history of domestic abuse?

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Domestic violence 100% is a serious issue, and can have a significant impact on future custody issues. Allegations of domestic violence are VERY relevant in child custody proceedings. If there is a history of violence directed towards, or in the presence of, minor children – this can be grounds for taking custody away from your spouse. Many states have “domestic violence presumption,” statutes. The legal presumption based on these laws is that an abuser’s actions and future actions would be harmful to the child. As a result, the custody of the child should be given to the spouse who isn’t abusive. Depending on where you live, the domestic violence history could result in either no access, or limited – supervised – access to the children.

Once a presumption has been established, it will have a permanent impact on child custody arrangements – regardless of where you end up in your divorce.

In states that have the legal presumption statute, they also have provisions to rebut the presumption. If your spouse has a history of violence, then you should be aware of the fact he/she can rebut the presumption by presenting evidence. The spouse will have an opportunity to present evidence he/she has changed his/her pattern of domestic violence, and isn’t a threat to the safety of the child. This can be in the form of things like: completing anger management courses, completing drug/alcohol treatment programs, showing negative tests for drugs, and participating in parent education courses, etc.

If your state doesn’t have a domestic violence presumption statute, then the presence of a domestic violence history could still have an impact on your child’s final custody. Many judges are VERY reluctant to give custody to parents who have a history of domestic violence. The history of domestic violence creates a “moral presumption,” in the judge’s mind – that the abuser shouldn’t be the primary care-giver of the child/children. Even if the violence wasn’t directed towards the child – the mere fact it occurs in the presence of the child is enough. Courts will exercise extreme caution, as a result.

Domestic violence can also be used against you. If you are separated from your spouse, and move in with a boyfriend/girlfriend, who is violent – infront of the children; then your spouse can bring this up in court – and take the children away from you. If your ex-spouse becomes aware of the fact you’re letting your boyfriend remain in the home, and engage in a violent manner infront of the children – he can ask the judge to take the children away from you. You, in essence, become guilty of the same thing as your spouse.

Regardless of whether your state has legal domestic violence statutes, a history/pattern of domestic violence will 100% affect a child’s custody. If your spouse can confirm a history of domestic violence by you, it will create a strong presumption against an abusive parent. If this happens, it’s important you hire a NYC family law attorney who can help you. You may even need a criminal attorney to help you fight the issue.

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