Domestic Violence and Child Custody Cases

Little boy covering ears while parents fight in background - domestic violence and child custody concept

Leaving an abusive relationship is hard. Managing ongoing contacts with an abusive former partner with whom you share a child can be even harder. Understanding the interplay between domestic violence and child custody cases can help, giving you and your Michigan family lawyer a framework in which to discuss custody and parenting time moving forward.

Child Custody in Domestic Violence Cases

In a divorce or child custody case, if the parents can’t agree on a child custody and parenting time arrangement, the Michigan family court will enter an order based on the best interests of the child. This involves an analysis of 12 “Best Interest Factors” covering everything from your emotional bond with your kids to their school records. One of those 12 best interest factors is:

“Domestic violence, regardless of whether the violence was directed against or witnessed by the child.”

This factor directs family court judges to look at the family dynamic and recognize the effect domestic violence can have on child custody cases. It includes:

  • Child abuse and violence against children
  • Spousal abuse during the parties’ relationship
  • Domestic violence against new partners or household members after the initial custody case or divorce is over
  • Violence toward step- or half-siblings

While domestic violence is one factor among many in the court’s child custody analysis, skilled family lawyers can show how an abuser’s patterns of power and control have affected many aspects of the child’s life.

What Counts as Domestic Violence in Child Custody Cases?

In criminal courts, domestic violence generally requires a physical assault. But domestic violence in a child custody case isn’t so limited. Michigan courts have long recognized the harmful effects of mental, emotional, and financial abuse (often called coercive control). More recently, in Brown v Brown, the Michigan Court of Appeals held that a father’s use of corporal punishment and abusive treatment of the family pets was enough to count as domestic violence.

If you or your children have been the targets of this kind of abuse, it may be helpful to work with a therapist after the relationship ends. In addition to the help a therapist can offer overcoming trauma, he or she can testify to the harm caused by the abuser’s coercive control, making it easier for the judge to connect the abuser’s behavior to the impact on the child’s best interests.

Can Someone with a Domestic Violence Conviction Get Custody?

There is no law directly prohibiting a person convicted of domestic violence from being awarded custody. However, if a child is conceived through sexual assault, the court is prohibited from awarding custody or parenting time to the offending parent unless the family continued to live together and established a mutual custodial environment for the child. In addition, family court judges take allegations of domestic violence very seriously. It is rare, but not impossible, for a person credibly accused of domestic violence to be awarded primary child custody.

There are also additional family court protections for children subjected to child abuse or neglect. These proceedings are initiated by Child Protective Services (CPS) and the Department of Health and Human Services (DHHS). They can result in the termination of an abuser’s custody of their child, along with their parental rights.

What If There Were No Domestic Violence Charges Filed?

False reporting of domestic violence is very rare. However, sometimes isolated incidents or exaggerated reports from children can take on inappropriate importance in a child custody case. In other cases, a dominant partner may use their partner’s efforts to protect themselves, their children, or their dignity against them, claiming to be victims of domestic violence themselves. That is why judges often seek additional proof that domestic violence occurred beyond the parties’ testimony.

However, the Michigan Child Custody Act does not limit domestic violence to cases involving a criminal conviction, or even domestic violence charges. There are many reasons why a survivor may not have filed a police report. There are even more reasons why a report might not result in a conviction. Even if no charges were filed, you and your attorney can still present evidence the domestic violence occurred to guide the judge’s decision about your child’s best interests.

Parenting Time Protections for Domestic Violence Survivors

Shared custody of a child can give an abuser access to their former victim and the power to continue their pattern of abusive behavior. Sometimes, an abuser who has lost control of a former spouse will use joint legal custody or parenting time exchanges as a way to exert continued control over their former partner, putting everyone involved at risk.

Unfortunately, it is usually not an option to cut an abusive partner out of your life entirely if you share a child. However, in setting a child’s parenting time schedule, judges may consider the risk of abuse or neglect of a child during parenting time, or the abuse of that child’s parent during exchanges. The courts have options available to protect you and your children from ongoing abuse. For example, they can:

  • Align parenting time exchanges with the start or end of school to minimize contact
  • Use a third party to provide transportation
  • Schedule pick ups and drop offs in a public place or near a police station
  • Require supervised parenting time for the abusive spouse
  • Mandate drug or alcohol testing before the start of parenting time
  • Require counseling or parenting classes (this is usually mutual and not always recommended in high conflict domestic violence cases)
  • Use a parenting coordinator or guardian ad litem to resolve disputes
  • Limit communication to an online program that allows court supervision

However, your judge won’t put these protections in place unless you ask for them. You should work with your family law attorney ahead of time to develop a safety plan for you and your children. Then you can make specific, level-headed proposals that the court can adopt to keep domestic violence from continuing after your child custody case is over.

Proving domestic violence in child custody cases can be emotionally traumatic and factually difficult. But it is very important for survivors to tell their stories to judges deciding child custody in the best interests of the children. At NSSSB, our Ann Arbor family law attorneys help parents defend themselves and their children against domestic violence. Click here to schedule a consultation with one of our experienced attorneys.