Domestic violence has a profound effect on everyone involved. Children who live with domestic violence are at risk for both physical and psychological harm. A little more than half of the women who are victims of domestic violence have children under age 12 living with them. According to the Partnership Against Domestic Violence, every 9 seconds, a woman becomes a victim of domestic violence. Approximately 3.3 million children witness such incidents each year, and many of them also become victims.
An overview of child custody
When a parent files for divorce, child custody becomes an issue. In Louisiana custody cases, the court determines “legal custody,” which refers to the right a parent has to make important decisions such as those concerning healthcare, education, and religion. The other type of custody, “physical custody,” determines which parent the child resides with and what visitation the child has with his or her parents. The court may award custody to the parents jointly or sole custody to a single parent. If child custody is uncontested, an agreement between the parents defines the arrangement. If custody is disputed, it will be resolved by court order. Either way, the arrangement determines where the child lives (physical custody), who is responsible for parenting decisions (legal custody), and terms of visitation.
Understanding the law
The law focuses on the “best interests of the child.” All custody and visitation discussions and decisions are made with the goal of ensuring the child’s well-being and safety. There are many factors to consider when making this determination. Relevant factors may include:
- The child’s relationship with each parent
- Each parent’s ability to fulfill the child’s emotional needs and provide spiritual and educational guidance
- Each parent’s ability to provide the child with food, clothing, healthcare, and other necessities, based on the child’s individual needs
- How long the child has lived in their current home or community
- The stability of parents’ homes
- How far apart the parent’s homes are from one another
- Each parent’s physical and psychological health
- When appropriate, the judge may consider the child’s wishes
- Each parent’s willingness to foster a healthy relationship between the child and another parent
- What childcare tasks have each parent performed in the past
- The moral standards of each parent
- Whether there is any history of domestic violence.
How does the law define domestic violence?
Under Louisiana law, domestic violence is physical or sexual abuse between family members, those living in the same household, and current or past intimate partners. Domestic violence includes physical or sexual abuse between persons who are or used to be family members, those who are or have been cohabitating, or current or past intimate partners.
Family violence includes, but is not limited to, the following acts:
- Physical abuse;
- Sexual abuse; and
- Any Louisiana criminal offense committed by one parent against the other parent or any of their children.
The impact of domestic violence on custody cases
Louisiana judges take domestic violence allegations very seriously. Therefore, a history of domestic violence will strongly influence the judge’s decision over child custody and visitation. In some cases, the court will grant joint custody. However, if clear and convincing evidence shows that sole custody of one parent is in the best interests of the child, the court will do that. In these critical, hotly contested proceedings, both parties should have attorney representation. However, in some circumstances, the court will hire an attorney, known as a guardian ad litem, to represent the child. This person investigates the family circumstances and recommends what custody and visitation arrangements would be in the best interests of the child.
If an incident of domestic violence led to a serious injury the courts will carefully consider evidence of domestic violence. If the court determines that an accused parent of domestic violence is a threat to the child or their spouse, they may deny custody to the accused parent. In Louisiana, judges start with the presumption that a parent who has committed domestic violence should not receive custody of a child. Each parent must notify the court if the other parent has a history or pending proceedings regarding domestic violence, termination of parental rights, or protective orders.
Domestic violence and visitation rights
In addition to child custody determinations, domestic violence also impacts visitation rights. The court may decide to revise an existing visitation order, issue a restraining order or order of protection, order supervised visitation, or revoke the alleged perpetrator’s visitation rights.
In addition, before granting visitation, the court order may outline actions to be taken. The court may order the accused parent to undergo a medical evaluation, attend anger management counseling, complete a domestic violence treatment program, or attend parenting classes before granting visitation.
In cases of extreme abuse, neglect, or death, Louisiana courts may terminate an individual’s parental rights.
Evidence of domestic violence commonly considered in court
Custody disputes often involve conflicting and highly emotional testimony. The judge must weigh all the evidence in order to decide who will spend time with the child and under what circumstances. The court typically considers:
- The severity of the violence and how frequently it occurred
- If the child was affected (directly or indirectly) by the alleged of domestic violence
- Whether person accused of domestic violence continues to pose a danger to the child or to the other parent
- Whether there’s a pending criminal case against the accused
- Physical evidence of abuse, such as photos or medical records
- Police reports or 911 calls documenting incidents of alleged abuse
History of domestic violence?
What happens if both parents have a history of domestic violence? If both parents have a history, the court decides which parent is less likely to commit domestic violence in the future. However, before the court awards an allegedly abusive parent custody or visitation, the parent must prove that the requested visitation or custody is in the best interests of the child. Typically, a parent must enter and complete a domestic violence treatment program and abstain from alcohol or drug use.
In all child custody cases involving domestic violence, the court may issue a protective order or a “Uniform Abuse Prevention Order”. The court may also approve any consent agreement to end domestic violence. There are serious consequences of violation of an abuse prevention order, such as possible loss of all visitation privileges.
Usually, the court will not permit visitation if the parent has sexually abused his or her children. In this case, the court may allow supervised visitation if they believe it is in the child’s best interests and the abusive parent has completed a program for sexual abusers. If the child is conceived as the result of a rape, visitation is not issued to a convicted rapist.
You are not alone
Domestic violence is devastating for everyone, but especially for children. There are many resources available for victims of domestic violence, such as the Louisiana Coalition Against Domestic Violence. If you are a victim of domestic violence or have been falsely accused of domestic violence, you need the help of an experienced, dedicated family law attorney. A qualified and experienced attorney can protect your rights and protect your children. For more information, or to schedule a case evaluation, call Stephenson, Chávarri & Dawson at 504-523-6496 or contact us online.
