Domestic Violence and Child Custody
Domestic violence and child custody often overlap, but it is two different pieces of legislation: the Domestic and Family Violence Protection Act, which is state-based and the Family Law Act, which is federal. It is important to weigh them against each other carefully and ensure any court orders made are consistent with each other and in respect to these laws.
If a parent has a history of domestic violence, will they get custody or time with a child?
If there is family domestic violence, it depends on numerous factors as to whether a mother or a father will get custody or time with a child. These factors rely on one question: Is it in the child’s best interest to allow custody or visitation to the parent who committed the act of domestic violence? If it is in the child’s best interests, then that parent will be allowed custody when the court sees fit. However, more often than not, if the domestic violence is severe or towards the child, it won’t be in their best interest to have unsupervised time with the perpetrator parent.
In deciding on child custody, a court must consider the paramount consideration of the child’s best interests. In a case where family violence is an issue, the objects that are usually evaluated are:
- S60B(1)a – Ensuring children have the benefit of both parents having a meaningful involvement in their lives that is consistent with their best interests; and
- S60B(1)b – Protecting children from physical and psychological harm and being subjected to, or exposed to, abuse, neglect or family violence.
The need to protect the children from harm is a paramount consideration in determining their best interest
It’s important to note that the Family Law Act is not trying to promote an optimal relationship with the parent but rather a meaningful one in the child’s best interest. A meaningful relationship is generally defined as something significant and valuable to the child. A meaningful relationship might include no contact, phone contact, supervised contact, or anything the court determines is in the child’s best interests. In family violence cases, a court must weigh these two objects (among others) carefully against additional considerations.
Additional Child Custody Considerations
S60CC sets out further considerations that a court must take into account; these include but are not limited to:
- Views of the child;
- Nature of the relationship with the child;
- The willingness and ability for the parents to facilitate a connection between the child and the other parent;
- Difficulties and expenses of the child spending time with a parent;
- The capacity of the child’s parents to care for the children;
- The attitude of the child; and
- Family violence involving the child or a member of the child’s family.
These considerations are not weighted the same as protecting the child from harm. However, they can sway a court into allowing a certain amount of time with the family violence offender in some cases.
What type of visitation or time is appropriate in cases of domestic violence?
In child custody cases with domestic violence factors, a court may order supervised time. Supervised time can be at a family members house or, in some cases, at a contact centre.
Mediation and family violence
For a couple to seek court orders for parenting, they must attend compulsory mediation. If family violence is an issue, a parent can ask the court to waive this requirement.
What parenting orders can a court make in cases with a domestic violence order?
Firstly, the parties must inform the family court of any domestic violence orders. Any parenting orders made by the family court must be consistent with the state order s60cG. Additionally, the court must not expose parties to an unacceptable risk of family violence.
If the domestic violence is towards the children, it is wise to get them named on the domestic violence order.
If violence is being alleged as an issue. In that case, a parent can ask for an urgent hearing date, and they may also dispense with any need to obtain an S60I certificate.
If you are under threat, you should contact your local law enforcement authority or ring a domestic violence hotline such as White Ribbon (1800 737 732 ). If you believe you are under immediate threat, please call 000.
In summary, it depends on each individual’s situation. There is no cookie-cutter answer as to how family violence will affect child custody. The specific details of the violence, the factors in the Family Law Act, and previous cases will all form part of the judge’s decisions as to how much or how little custody they should award to a parent