Domestic Violence and Divorce: Understanding the Impact on Custody Proceedings

Unfortunately, domestic violence is becoming an epidemic in American society, destroying relationships and damaging the estimated three million children who witness parental abuse every year. When parties separate and domestic violence has taken place, the court must determine child custody based on what arrangement is best for the child’s physical, mental, and emotional well-being.

Make no mistake about it: being convicted or even accused of domestic violence can seriously harm a parent’s chances of receiving custody. Unlike many states, North Carolina does not have a rebuttable presumption against an allegedly abusive parent receiving custody of or access to their children. What this means is that if a parent has been accused of or has a history of domestic violence, the court or judge does not automatically assume that they cannot have custody of the child. However, the law requires the judge to always decide in the best interest of the child, and to ensure that the child is safe from being abused, and from witnessing it. If one parent is abusive, and the other parent is unable or unwilling to protect the child from that abuse, the judge will weigh that fact into his or her decision as well.

When it comes to allegations or a history of domestic violence in the family, judges in North Carolina tend to consider factors like the following when making a custody decision:

  • Whether a criminal case is pending against the alleged abuser
  • The frequency and intensity of the domestic violence. In other words, is it likely that such abuse will continue in the future? Is there a pattern of abusive behavior?
  • Any evidence of abuse, such as photographs and police reports
  • Whether the child was a witness to or victim of domestic violence
  • Whether the accusing parent has made accusations before, and either dismissed them or failed to fully pursue an outcome that protects the children

Domestic violence doesn’t only have an impact on custody decisions, they also affect whether the alleged abuser will even be able to visit their children. If the court feels that there is a risk involved, it may:

  • Order supervised visitation
  • Revise an existing visitation order to deny overnight visits
  • Temporarily or even permanently revoke the accused parent’s visitation rights
  • Issue a protective order that limits or prohibits one parent’s contact with the child, and/or with the other parent

Domestic violence is a highly emotional situation to be in or be accused of. Survivors of domestiv violence who are worried about their abusive partner endangering the children can minimize the latter’s chances of getting custody by obtaining a Domestic Violence Protective Order (DVPO), which orders the abuser to stay away from the survivor and, in certain situations, the children. At the other end of the spectrum, parents who have been falsely accused of domestic violence by a malicious spouse can find themselves in the terrible position of losing access to the children they love.

North Carolina laws surrounding domestic violence can be complex and application of these laws vary case-by-case, leaving victims of both abuse and false allegations unsure about their rights and options in custody matters. For knowledgeable assistance and advice, contact the experienced family law attorneys of Haas & Associates, P.A. We will advocate for you throughout any and all custody proceedings, so that the final outcome is the one that is in the best interests of you and your children.