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Custody and Related Provisions

Custody

  • Legislation should expressly guarantee equal parental and guardianship rights to both parents.

CASE STUDY: Drafters should amend laws that deny equal parental and guardianship rights on their face or in practice. For example, in Geeta Hariharan v Reserve Bank of India, the Supreme Court ruled on the constitutional validity of the Hindu Minority and Guardianship Act and whether it denied equal guardianship rights to women. Article 6 discriminates against women and states:

The natural guardian of a Hindu minor, in respect of the minor’s person as well as in respect of the minor’s property (excluding his or her undivided interest in joint family property), are –

a. in the case of a boy or an unmarried girl-the father, and after him, the mother; provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;

b. in case of an illegitimate boy or an illegitimate unmarried girl-the mother, and after her, the father;

c. in the case of a married girl-the husband.

The Supreme Court interpreted Article 6, however, as stating the mother and father are natural guardians of their children. (See: Women’s Rights Initiative, Lawyers Collective). Laws should unequivocally guarantee this equality.

  • Legislation should state that in every proceeding where domestic, dowry-related or family violence has occurred between the parents or between the daughter-in-law and her parents-in-law, 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. Where there is a dowry death or dowry-related violence between the daughter-in-law and her parents-in-law, this rebuttable presumption concerning the child should extend to the woman’s parents-in-law. 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 require the court to consider the history of demands and other harassment for dowry.
  • Legislation should mandate that the absence of a parent from a court proceeding because of domestic or dowry-related violence, or the relocation of a parent due to domestic or dowry-related 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)

Residence of Child

Legislation should state that in every proceeding where domestic, dowry-related or family violence has occurred between the parents or between the daughter-in-law and her parents-in-law, there is a rebuttable presumption that it is in the best interest of the child to reside with the parent who did not perpetrate the violence in the location of that parent’s choice.

In cases of dowry deaths or suicides as a result of dowry demands or violence, laws should provide for a rebuttable presumption that it is not in the best interest of the child to reside with the perpetrators or his relatives who demanded or received dowry from the victim’s family. This presumption should extend to cases involving orders for protection, juvenile delinquency and child protection.

(See: Family Violence:  A Model State Code (1994), Sec. 403)

Competing statutory provisions

Legislation should provide that where there are statutory provisions which would compete with the rebuttable presumptions described above, for example a “friendly parent” provision, which favors a parent who will foster frequent contact with the other parent, or a provision that provides for the presumption of joint custody, these provisions shall not apply to cases involving domestic violence, dowry-related violence or dowry deaths. Legislation should provide that where there are statutory provisions which would compete with the rebuttable presumptions described above, for example placing custody of the child with the husband’s parents, these provisions shall not apply to cases involving dowry-related violence or dowry deaths.

(See: Child Custody and Visitation Decisions When the Father Has Perpetrated Violence Against the Mother (2005); Child Custody and Visitation Decisions in Domestic Violence Cases: Legal Trends, Risk Factors, and Safety Concerns (Rev. 2007))


Parental alienation syndrome

Legislation should state that “parental alienation syndrome” is not admissible as evidence in hearings on child custody or visitation. “Parental alienation syndrome” is a term for a situation in which one parent is accused of alienating a child from the other parent.  In situations of domestic abuse, behavior that is reasonable to protect a child from abuse may be misinterpreted as a sign of instability.  See: What is Parental Alienation Syndrome, The Leadership Council on Child Abuse and Interpersonal Violence last acc. 2/9/10.

Visitation

Legislation should state that visitation may be awarded to a parent who committed domestic or dowry-related violence only if the court finds that adequate provision for the safety of both the child and the parent who is a victim of domestic or dowry-related violence can be made. Legislation should include the following options for providing safety to a child and victim parent where there has been domestic violence or dowry-related violence:

  • The court may order the exchange of a child to occur in a protected setting.
  • The court may order that the visitation be supervised by another person or an agency.
  • The court may order the perpetrator to pay a fee to defray the costs of supervised visitation.
  • The court may order the perpetrator to abstain from possession of alcohol or controlled substances both during the visitation and for 24 hours preceding the visitation.
  • The court may prohibit overnight visitation.
  • The court may require a bond from the perpetrator of domestic violence for the return and safety of the child.
  • The court may impose any other condition that is deemed necessary for the safety of the child, the complainant/survivor, or other family members.

(See: Family Violence:  A Model State Code (1994), Sec. 405)

 

Confidentiality of address

Legislation should state that the court, whether or not visitation is allowed, may order the address of the child and the complainant/survivor to be kept confidential. Laws should also require that advocates, protection officers and police maintain the confidentiality of the address of the child and the complainant/survivor.

Also, legislation should provide money and guidelines on infrastructure to protect victim privacy. For example, the Lawyers Collective found that Protection Officers lacked a separate office space, thus compromising victims’ privacy. Staying Alive: Second Monitoring & Evaluation Report 2008 on the Protection of Women from Domestic Violence Act, 2005, 2008, p. 22.

See: Family Violence:  A Model State Code (1994), Sec. 405.

 

CASE STUDY:  Guidelines for Domestic Violence Cases with Child Witnesses

Many incidents of domestic violence occur with children as witnesses. This exposure is a matter of continuing concern to child protection and child welfare professionals, as well as domestic violence service providers and domestic violence complainant/survivors. While children exposed to domestic violence may be negatively impacted by such exposure, there are many steps that can be taken which can ameliorate these possible impacts.

Beginning in 2000, in the Canadian province of British Columbia, a collaborative inter-agency group developed and began to implement Best Practice Approaches: Child Protection and Violence against Women (2004) (hereinafter “Best Practices”).  The group included practitioners and administrators from governmental agencies, medical centers, and non-governmental organizations.  These guidelines draw upon research and expert documents developed in the Canada, the UK, and the US from 1995 to 2000, with the aim of helping those working in child protection and child welfare services to better understand the impact that exposure to domestic violence was having on children, and to train child protection service providers in the dynamics of intimate partner violence.

“Best Practices” is based upon the core assumption that, in situations of domestic violence, the child’s safety is interconnected with the safety of the complainant/survivor, who is most often the child’s mother. To protect the child, steps must be taken to protect the mother, by providing safe and supportive services in a non-punitive, non-judgmental manner. 

The report provides advocates with detailed practice options for different situations of domestic violence. For example, it prompts the advocate to ask about the level of danger in the home, if firearms are present, the nature of any threats, and if the mother is fearful for her own or her children’s safety.

The response of the child protection system must be based upon a well-trained child protection worker’s assessment of the circumstances of the totality of the case. If an investigation or intervention is required, the report offers practice tips for child protection service providers that support the safety of the mother, such as safe methods of contacting her, or the best way to arrange a meeting. (p. 13)

If there is an immediate concern for the safety of the children, “Best Practices” offers a series of steps for child protection service providers to take that reflect concern for the children, and at the same time, reflect respect for the person/caregiver who has been keeping the children safe to date. It suggests that caseworkers:

  • Explain reasons for the concern to the woman in a direct, non-blaming manner.
  • Elicit the woman’s and the service provider’s suggestions for a safety plan for the children.
  • Develop a safety plan that tries to keep the child with the mother if possible by focusing on her safety, her strengths, and supportive resources.
  • Explore how finances, threats and other issues might impact her options. (p. 14)

Effective intervention depends upon multi-agency, collaborative and integrated efforts that include battered women’s programs, child protection workers, law enforcement and the court system working together with the safety of the child and the mother at the forefront. “Best practices” concludes that the child and mother benefit the most when the violent offender is removed from the home and held accountable for the violence, not by separating the child from the mother.

Resources:

For assessment guidelines on evaluating the risks from batterers who profess to have changed, see Assessing Risk to Children from Batterers (2002).

(UK: Tackling Domestic Violence: Providing Support for Children who have Witnessed Domestic Violence)

USA: Effective Intervention in Domestic Violence and Child Maltreatment Cases:  Guidelines for Policy and Practice ; Child Custody and Visitation Decisions When the Father Has Perpetrated Violence Against the Mother (2005).