University of Missouri Extension

GH6608, Revised April 2016

Domestic Violence and Custody Issues

David Schramm
State Specialist, Human Development and Family Science
Jennifer Carter Dochler,
Missouri Coalition Against Domestic and Sexual Violence
Kelly Martinez,
Missouri Coalition Against Domestic and Sexual Violence

Domestic violence is a pattern of assaultive and coercive behaviors used by some individuals to control their partners. There are many types of domestic violence:

Focus on Kids
This guide is part of a series aimed at helping families in which parents are separated or divorcing and who share parenting responsibilities for children. We will use the terms divorce and separation interchangeably to describe parents who are separated from each other.

Domestic violence is not an isolated, individual event, but rather a complex pattern of repeated behaviors. This can include tactics of coercive control that, on their own, can be difficult for others to recognize as abuse, but create a cumulative effect of intimidation, threats and isolation. Individuals who have experienced ongoing, chronic exposure to such abusive tactics can become traumatized and might suffer lingering effects, such as post-traumatic stress disorder.

Power and control

There are many different ways individuals might abuse and control their partners.

Following breakup or divorce, abusive individuals might:

Individuals who experience domestic violence know there are many other tactics their partners use to try to control them. Many abusers also isolate their partners from family and friends so they feel there is nowhere to turn when they decide to seek help.

Safety issues

There are a number of ways individuals who experience abuse can try to protect themselves and their children. A survivor can file a criminal police report about the abuse, or they can file for an order of protection in civil court. Through an order of protection, the court places restrictions on abusers that can subject them to arrest and jail time. Survivors can ask judges to tailor an order of protection to their needs and include custody issues if need be. It is important to note, however, that once a custody order is made or pending in a divorce or paternity case, a custody order cannot be made in an order of protection.

If a survivor already has an order of protection in place when the custody case begins, an opposing counsel might suggest dismissing the existing order of protection in favor of a no-contact order in the dissolution case. A no-contact order in a dissolution case does not have criminal penalties, unlike an order of protection. Abusive individuals cannot be arrested for violating a no-contact order, and the police will not enforce no-contact orders contained in a dissolution or custody order.

During a custody court process, survivors have to make several decisions about the future for themselves and their children. The courts greatly emphasize cooperation between separating parents. For example, mediation and joint custody arrangements are routine in custody cases. However, survivors can ask the court to waive mandatory mediation because they are victims of domestic violence. It is important to discuss these issues with an attorney.

If survivors fear for their safety in the courthouse, they can also seek the services of a domestic violence shelter advocate or an escort to take them to court and elsewhere. Survivors can also request for the court marshal or bailiff to use appropriate safety measures in or after court. Marshals and bailiffs might be able to accompany survivors to their vehicle or ask that the abusive partner remain in the courthouse while the survivor leaves. Learn what safety measures a local court can provide.

Dissolution and custody cases

Many individuals who have experienced abuse fear losing custody of their children to an abusive partner. Missouri is a friendly parent state, which means that courts favor granting joint custody. It is the policy of the state that frequent, continuing and meaningful contact with both parents is in children's best interest. There is an exception to this policy for cases in which the court finds that such contact is not in the best interest of the children, such as in a domestic violence situation.

Not all attorneys are knowledgeable about domestic violence. Some attorneys understand better than others the dynamics of domestic violence and have experience with the impacts of domestic violence on custody issues. To locate an experienced attorney, survivors might contact:

If it is safe to do so, survivors can keep copies, records and personal journals of the following to help with their case:

These documents might be necessary when going to court over custody arrangements or visitation. Survivors might also need them if there are future incidents of abuse or motions to modify custody or child support arrangements.


Types of court-ordered custody

Legal custody is the right and obligation to make decisions about a child's upbringing, such as those regarding children's schooling, religion and medical care.

Physical custody describes when a parent has the right to have their children with them.

Courts prefer joint custody and always start from the position that joint physical and joint legal custody is preferable. Absent extreme circumstances, courts prefer to have both parents involved in decisions regarding the children. Proving domestic violence is present is one such extreme circumstance that can lead the court to grant sole custody. Individuals who have experienced abuse should consult an attorney about this.

Evidence of domestic violence

If presented with evidence of domestic violence, courts must consider that evidence when making decisions involving custody or visitation. Missouri's custody statute is not particularly sensitive to domestic violence survivors in several respects. The statute includes language articulating that it is state policy to encourage both parents to participate in decisions affecting the health, education and welfare of the children, and to resolve disputes involving their children amicably through alternative dispute resolution. Participating in joint decision-making or going to alternate dispute resolution such as mediation with an abusive parent might be traumatic or dangerous for survivors.

The custody statute also requires courts to determine custody arrangements to ensure both parents participate in such decisions. It requires that both parents have "frequent, continuing and meaningful contact" with their children so long as it is in the best interests of the children. To the court, survivors might appear to be noncooperative parents when in actuality they are being protective of their children. That is why it is so important in custody cases for attorneys to present strong evidence of domestic violence if survivors do not want abusers to have joint physical and legal custody.

If a court finds that domestic violence has occurred, it must make specific findings of fact to show that a court-ordered custody arrangement best protects the children and the victim of domestic violence from any further harm. The court can award custody to the parent who perpetrated domestic violence if it finds that is in the best interest of the children. If the court finds that a pattern of domestic violence has occurred and still awards custody to the abusive parent, it must issue findings of fact and conclusions of law explaining the award. If the judge does not make these findings, it would be an appealable issue.

Parenting plans

During the custody case, survivors will have to develop a parenting plan. This document states the parents' wishes regarding a specific written schedule detailing custody, visitation and residential time for each child with each parent, as well as times and places of transfer of the children. A parenting plan also includes suggested restrictions and limitations on access to other persons and reasons why, a specific written plan for legal custody, and the allocation of responsibility for paying the children's expenses.

Be specific when drafting a parenting plan. Survivors know whether their former partners will cooperate or are just appearing cooperative during the divorce process. Get in writing any agreements made during divorce negations. When making these decisions, survivors are advised to think of future dealings with the other parent and the long-term well-being of their children. Survivors are encouraged to think of ways to limit contact with the other parent in the parenting plan, such as by requesting contact only through email or text, or by arranging custody exchanges in public places or at a police department.

If the parents are able to agree on issues contained in the parenting plan, they can submit a joint parenting plan. If the parents do not agree, then each parent submits their parenting plan to the court. The court then makes a determination about which parent's plan is in the best interest of the children after listening to all of the evidence at trial and order that both parties follow that plan. The court can also reject both parties' plans and order a parenting plan drafted by the court.

Co-parenting after divorce

If a survivor has continued contact with the other parent as a result of a custody or visitation arrangement, they can consider the following ways to ensure the safety and well-being of themselves and their children:

Conclusion

To seek help, individuals experiencing abuse can call the National Domestic Violence Hotline at 800-799-SAFE. To get more information or to find a local domestic violence program, call the Missouri Coalition Against Domestic and Sexual Violence at 573-634-4161. The coalition is not a direct service provider, but individuals can visit its website and click on "Need Help?" for a map of local domestic violence programs across Missouri.

References

This guide was originally authored by Kim Leon.
GH6608 Domestic Violence and Custody Issues | University of Missouri Extension

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