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Can he get custody with his history of domestic abuse?

July 1, 2018

Women will be especially interested to learn whether a husband with a history of domestic abuse is able to get sole or even primary custody of their children. It is absolutely true that domestic violence like this (that is an established and undisputed fact) will often prove to be decisive in the battles for custody involved in divorce proceedings. It is also the case that the husband may have slapped around his wife while not ever abusing their children.

Yet this still causes the home to be an unsafe environment because of the violence in the house. In fact, statistics have demonstrated that domestic abusers of their spouses are far more likely to morph into child abusers than are non-spousal offenders. Judges are keenly aware of this statistical phenomenon, and they will consider it when deciding on the primary custody arrangements for the children of the divorce.

It is a sensible and appropriate question to consider in a divorce if an abusive husband who is a good father may win primary custody of the children. Even possessing a documented history of spousal abuse, this does not necessarily rule out (certainly shared custody and) possibly even the primary custody award. In this article, we will look at the standards for deciding who gets primary custody when spousal abuse is a well-known factor in the relationship and an underlying cause of the divorce.

Standards for Deciding Child Custody

It is up to every individual state in the U.S. to decide on its own that determine these kinds of family and divorce issues. Parenting time (or visitation) and child custody are no exceptions to the rule. Yet despite this jurisdictional independence, the 50 states generally employ the same standards of decision-making when it is time to award custody of the children in the divorce proceedings.

The primary standard of the 50 states centers on what is known as “the best interests of the children.” There is no simple one size fits all policy for child custody awards. Instead, the judges always consider the particular facts and factors of a given case when coming up with their ruling on awarding primary custody of the children.

Several different factors are generally employed. Among these are the primary consideration of which parent has shown the historical primary care giver role for the children. Besides this, they will consider the emotional, mental, and physical health of both parents and the children in question.

Domestic Abuse as it Relates to Primary Child Custody

It would be foolhardy to assume that because a woman’s husband has been a brute towards her that this will automatically preclude him from gaining primary custody of the children. A documented history of spousal abuse will not necessarily eliminate the father from obtaining primary custody in fact.

The court will carefully consider the evidence on who was the victim of all domestic violence that occurred in the home in question. In many cases, the only target for the domestic violence proves to be the unfortunate spouse. The children are not victims directly in these cases.

The court will further consider the level of abuse that the husband perpetuated as part of the decision-making process. There are a number of different types of domestic abuse and even various combinations of it. These might involve emotional, psychological, and physical abuse.

Lastly, the courts will contemplate the time when such spousal abuse actually happened. It may be that such history lay far back in the distant past. This would be a considerably positive development for the husband if he had put his abusive past soundly behind him.

Types of Child Custody Awards

The arrangement of the custodial relationship will also help determine if the husband who possesses an abusive past will be given primary custody or not. Courts are more inclined to give joint custody and primary residency rights to the woman if the judge is satisfied that the man has been abusive. In cases where sole custody is being contested by the two sides, then the domestic abuse issues are more likely to be carefully and minutely considered by the court.

The Physical, Mental, and Psychological Health of Each Parent Matters Significantly

It may seem completely unfair that because a woman’s emotional, mental, and even physical states can have been damaged by the husband in a domestic abuse situation, this may cost her primary custody of the children. Yet if such damage has been permanent or even just lasting, then the court is likely to heavily consider it when deciding the child primary custody award.

For example, the woman may have suffered from real emotional or psychological issues from the abuse in question. This could have restricted her ability to be a good parent. In such cases, there is a very real possibility that the court will decide that this mother can not function effectively as the primary custodian of the children thanks to her emotional of psychological scars and problems. The father would be the likely victor in these cases.

Again, this can still be their legitimate findings even when such problems arose directly from spousal abuse by the father who may receive primary custody as a “reward” for his animal-like behavior in their marriage. No one is saying it is ideal or even fair. Yet because of her inability to effectively raise the children thanks to the emotional baggage, the court can rule in the father’s favor as he is deemed to be the healthier and more stable of the two parents.

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