Perspectives on Joint Custody Presumptions as Applied to Domestic Violence Cases

Abstract

Despite the trend toward statutory presumptions in favor of joint legal and physical custody, practitioners increasingly recognize that domestic violence has serious implications for the efficacy and safety of parenting and shared care. This article explores the implications of domestic violence for shared parenting and for the statutory legal and physical custody presumptions and exceptions which are triggered by or are applicable to domestic violence. This article proposes that a better framework for addressing intimate partner violence–related custody cases is one that guides practitioners toward fact‐based determinations of the implications of the violence for parenting and co‐parenting in individual cases.Key Points for the Family Court Community:Parents who are coercive controlling abusers frequently exhibit the types of problematic parenting behaviors which make shared parenting unrealistic.Instead of applying blanket joint custody presumptions, all family court practitioners, including judges, should: (1) be alert to signs that domestic violence may be an issue; (2) understand the nature and context of any abuse; (3) determine the implications, if any, of the abuse for parenting and co‐parenting; and (4) account for the violence and its implications in their handling of cases.Exceptions for domestic violence cases fail to prevent the inappropriate application of joint custody presumptions to many families for whom domestic violence is a significant issue because: (1) abuse is often not detected by the system, (2) victims have problems proving that the abuse occurred, and (3) many practitioners are disinclined to believe that the abuse occurred.