Family Law

Child Abuse & Child Custody

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For the vast majority of parents, their children are their pride and joy. They'll do practically anything and everything to keep them happy, healthy and safe. Children are precious in the eyes of the law, too. They're too young to take care of themselves, so there are stiff criminal penalties for anyone who commits child abuse or neglect.

Parents certainly are no exception. Not only do they face jail time for child abuse or neglect, such behavior may lead to a parent's loss of custody or visitation during or after a divorce.

Child Custody: Not For Abusers

As a general rule, any type of activity or behavior by a parent (or any other adult seeking custody) that poses a threat to the physical or emotional health and welfare of the child is taken very seriously by the courts in custody decisions. Abuse or neglect may lead a court to decide that a parent is "unfit" - an automatic bar to child custody.

Neglect of the physical needs of the child, such as insufficient food, medical care and hygiene, could determine the custody award. Likewise, abuse of the child - or the other spouse - whether physical, sexual or emotional, usually means the abusing parent won't get custody.

Both Parents Lose

Before, during or after the divorce, a child who's the victim of abuse or neglect by one or both parents may be taken from the home by a state or local agency, such as Child Protective Services. The child may be placed in foster care.

Child Visitation May Be Limited, Even Lost

While courts try to make sure that both parents have a relationship with their child after the divorce, they won't hesitate to limit, restrict or even deny visitation rights for an abusive parent.

A parent who has abused or threatened to abuse a child may get only limited or restricted visitation. For instance, a court may lower the number of hours of visitation, bar overnight visits and impose conditions on the parent, such barring the parent from drinking alcohol during visits or requiring the presence of a third-party during periods of visitation.

The more serious the conduct the more serious the restrictions. For instance, evidence of child abuse or domestic violence may result in the denial of all visitation rights.

Evidence of Abuse

Relatives, neighbors, health care providers and others who have witnessed abusive acts many give oral testimony during the custody hearing about what they have observed. Medical records may also be presented. Evidence of domestic violence, directed at the other parent or siblings, may also be used at the custody hearing.

Evidence Must Be Good

There must be real evidence of abuse before a court should act. The main goal in most custody disputes to make sure the child has and keeps a relationship with both parents. It's up to the court to decide if there's enough evidence of abuse or neglect to limit or deny a parent's visitation rights.

Courts have ordered supervised or limited visitation where a parent has shown great anger or hostility in the presence of the child. In cases like these, a court may order counseling for the parent rather than deny visitation altogether. 

Emotional Harm Is Not Ignored

In looking out for the health and welfare of a child, courts look at the child's emotional health as well as the child's physical well-being. Custody may be denied and visitation may be limited if a parent's conduct or behavior poses threats to the child's emotional well-being.

Evidence of emotional harm may include bedwetting, stuttering or unusual behavior at home or at school. True, hostility between a parent and child could also be evidence emotional harm. Supporting testimony of an expert, counselor or teacher on the child's mental health may be needed to convince the court of the potential harm.

Where children are involved, everyone connected to the divorce - parents, lawyers and judges - has the responsibility of watching out for the all around well-being of the children. There's no room for child abuse or neglect in any setting, and the law is there to make sure that abusive or neglectful parents have limited contact with their children.

Questions for Your Attorney

  • My ex-spouse has custody of our child and I think her new boyfriend is abusing our child. What can I do to change custody?
  • Is spanking and other types of discipline child abuse?
  • Will our child have to testify in court about claims of child abuse and neglect?
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