Legislation should state that in every proceeding where domestic or family violence has occurred between the parents, there is a rebuttable presumption that it is detrimental to the child and not in the best interest of the child to be placed in sole custody, joint legal custody, or joint physical custody with the perpetrator of the violence. This presumption should extend to cases involving orders for protection, juvenile delinquency and child protection.

• Legislation should require the court to consider as primary the safety and well-being of the child and of the parent who is the victim of domestic violence.
• Legislation should require the court to consider the perpetrator’s history of causing physical or psychological harm or causing the reasonable fear of physical or psychological harm to family members.
• Legislation should mandate that the absence of a parent from a court proceeding because of domestic violence, or the relocation of a parent due to domestic violence, are not factors which weigh against the absent parent in determining custody or visitation.

(See: Family Violence:  A Model State Code (1994), USA, Sec. 401 and 402.)

For example, the Guardianship Amendment Act (1995) of New Zealand includes a presumption against giving custody or unsupervised access to a party who has used violence against a child or the other party to the proceedings unless the court was sure that the child would be safe from violence. A protective order under the Domestic Violence Act (1995) of New Zealand would trigger this presumption. (See:  Deserving of Further Attention: A Case Streaming Approach to Child Custody and Access in the Context of Spousal Violence (2005))

Case Study: Battered Mothers’ Testimony Project: A Human Rights Approach to Child Custody and Domestic Violence

In a 2003 study, the Arizona Coalition Against Domestic Violence found that evidence of partner and/or child abuse did not prevent the abuser from winning sole or joint custody in most cases; income level—highly skewed in favor of fathers—apparently had the most impact on the custody order. Orders for protection had no impact on the final custody decision, with courts ignoring documented domestic violence evidence despite state law to the contrary. The study found that 100% of the victims were ordered to go to face-to-face mediation with the abuser. Researcher noted that a large number of judges thought that since the parties were separated, domestic violence was not a concern; and unsupervised visits were frequently awarded. A majority of the women also reported condescension from state actors, denial of adequate opportunity to present their cases, and the use of litigation abuse tactics by the batterers.

The study found widespread violations of state law, constitutional due process and equal protection guarantees, and international human rights law. The authors made a number of recommendations, including: ongoing training for judges and court personnel to educate them about the dynamics of domestic violence and child abuse, including post-separation violence; requiring judges to write detailed findings of fact and conclusions of law in their custody orders; no mandatory face-to-face meetings between victim and abuser; supervised visitation when there is violence; elimination of existing time limits for contested custody hearings; sanctions for litigants who abuse the legal process; and reform of the complaint process against judges and custody evaluators.