Family Law

Child Abuse & Child Custody

By Kristina Otterstrom, Attorney
Parents who abuse or neglect their children may lose custody.

What Constitutes Child Abuse?

Child abuse doesn’t have to be extreme for a parent to lose visitation or custody rights. As a general rule, in the family law context, any activity or behavior by a parent that threatens a child’s physical or emotional well-being is considered abuse. This includes verbal abuse that results in emotional trauma and physical abuse that results in visible bruises, scratches, or broken bones. Neglect is another form of abuse, where a parent refuses or fails to provide for a child’s most basic needs. For example, a parent may commit neglect by failing to feed, bathe, or provide necessary medical care for a child over an extended period of time.

Judges take all forms of child abuse seriously, as children are vulnerable and unable to protect themselves. While parental rights are fundamental and constitutionally-protected, a child’s best interests and safety are the primary objectives of any custody decision. Parents who abuse their children may lose some—or all—of their parental rights.

How Will Child Abuse Affect My Custody Case?

No one wins in a child abuse case. Both parents risk losing custody rights if the non-abusive parent knew about the abuse and didn’t prevent it. For example, if one parent sexually or physically abuses a child, while the other parent stands by and does nothing, the child may be removed from the parents’ home. A state or local agency like Child Protective Services will get involved in abuse or neglect cases, and may place a child in foster care or with relatives. If a judge determines that the abuse is likely to happen again in the future, a judge may terminate the abusive parent’s rights, permanently cutting off the parent-child relationship.

In less severe cases of abuse, a judge may restrict the abusive parent’s relationship with the child. Restrictions may include limited visitation or supervised visits. Specifically, a judge can:

  • reduce a parent’s visitation hours
  • prevent overnight visits, and
  • require supervised visitation, where a third-party supervises all of the parent’s visits with the child.

If you have real concerns about ongoing child abuse, you may need to call police and hire a local family law attorney for your custody case.

How Do I Prove that My Child Has Been Abused?

If you’re alleging that your spouse or ex partner abused your child, you’ll need a lot more than circumstantial evidence. Relatives, neighbors, family friends, health care providers, and others who’ve witnessed abusive acts may testify during a custody hearing. Additionally, medical records from your child's therapists and doctors are often used at a trial. Evidence that your spouse has a history domestic violence against you or the child's siblings is also relevant. Evidence of emotional harm may include bedwetting, stuttering, or unusual behavior at home or at school. You’ll need supporting testimony from an expert, counselor, or teacher about the child's mental health to convince the court of both past and potential harm.

A custody evaluator can be helpful in cases where abuse is difficult to prove, or where you need help gathering evidence. A custody evaluator will take the lead in interviewing family members and therapists to prepare custody recommendations for a judge. There must be clear and convincing evidence of abuse for a court to limit a parent’s time with a child. A judge doesn’t have to follow a custody evaluator’s recommendation, but it's usually persuasive, especially in parental abuse cases.

Questions for Your Attorney

  • My ex has custody of our child, but I’m worried that her new boyfriend is abusing our child. What can I do to get custody?
  • Will a court convict me of child abuse if I spank my child?
  • Can I have my child testify about child abuse or neglect committed by the other parent?
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