A Judge’s Guide

RECURRING ISSUES
woman is three times more likely than a divorced woman, and 25 more times
likely than a married woman, to be victimized by her spouse. 103 In order to
maintain control over their wives, abusive spouses may use threats to seek custody
in order to maintain control or other tactical advantages. 104 Following the
separation, abusers discover that they can manipulate and control the spouse with
threats. 105
Custody disputes can be a litigation tactic that allows the battered woman to be
revictimized. 106 A father may threaten to sue for custody, seek modification, or
oppose relocation as a bargaining tool. He may discover that his wife may be
willing to forego rights to child support and alimony in exchange for custody. 107
For example, one study indicated that women reduced their requests for resources
during negotiations when they were afraid that they might lose custody. 108
To clarify often false claims made in child custody determinations involving
domestic violence, the ABA Commission on Domestic Violence has explored the
myths surrounding domestic violence and custody, and published 10 Myths about
Custody and Domestic Violence and How to Counter Them in 2006. This two-page
summary is available as an appendix to this edition.
Child custody determinations in almost every state require the judge to apply a
two-step analysis. 109 First, the judge must assess the fitness of the parents. Then,
the judge must design a custody arrangement that is in “the best interests of the
child.” 110 Almost all states have legislation that makes domestic violence a factor
that the courts must consider when awarding custody or visitation, 111 and many
require that courts make findings of fact regarding evidence of domestic abuse
prior to awarding custody and visitation. 112 Many states have created
presumptions regarding domestic violence, e.g., “that it is not in the child’s best
interest to be in the custody of a domestic violence perpetrator.” 113 About half of
the states have created a rebuttable presumption against the awarding of custody
or visitation to parents who have a history of domestic abuse. 114 To overcome
this presumption, the abuser would have to show the custody would be in the best
interests of the child. Some states that have adopted a joint custody presumption
have negated the preference in cases where there is domestic violence. 115
Even if your state statute does not have a rebuttable presumption against custody,
there are three reasons to support a finding that a batterer is an unfit custodian:
“First, the abuser has ignored the child’s interests by harming the child’s other
parent. Second, the pattern of control and domination common to abusers often
continues after the physical separation of the abuser and victim. Third, abusers
are highly likely to use children in their care, or attempt to gain custody of their
children, as a means of controlling their former spouse or partner.” 116
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