Generally, visitation rights are granted to the non custodial parent in situations involving divorce and child custody. Most states assert that both parents have an equal right to visit with their child, as it is generally accepted that seeing and maintaining a relationship with both parents is in the child’s best interests. Other factors considered by the court when awarding custody and visitation rights include:
- The age of the child;
- The overall well-being of the child;
- The location of each parent;
- Whether or not there is a history of family violence;
- Each parent’s lifestyle and work schedule;
- Each parent’s work and employment history; and
- The child’s preference, if the child is old enough to state such as preference.
If there are past issues with either parent regarding abuse or domestic violence, the court will take this into consideration and may require supervised visitation. Supervised visitation may also be ordered for the reintroduction of the parent and child, parenting concerns, mental illness, substance abuse, a threat of kidnapping, or neglect. In rare cases, a judge will rule that the abusive parent is to have no visitation with their child at all.
I Am Being Abused, Can My Abuser’s Visitation Rights to Our Child Be Revoked?
The most important first step in an abusive relationship is to file a temporary protective order, or an emergency petition for custody in order to protect yourself and your child. A temporary protective order, or temporary restraining order, is a court order that will restrict one person from contacting or harming another person.
An example of this would be an order that requires someone to maintain a specific distance, such as three hundred feet, from another person. These orders can last anywhere from days to years, and a violator may face criminal penalties for failing to follow the order.
A temporary restraining order is commonly utilized in domestic violence cases. However, a court may require proof of the alleged abuse before granting such an order. If you are experiencing abuse and wish to file for a temporary protective order, it is imperative that you document each incident of abuse, both before and after separation. Some common examples of documentation include:
- A police report that was filed immediately following the incident of abuse;
- Photos showing injuries or property damage resulting from the incident of abuse;
- Copies of threatening texts, emails, voicemails, etc.;
- A statement from a trusted family member or friend after confiding in them about the abuse; and
- The testimony of the child if they were present, or heard, the incident of abuse.
Many temporary protective orders include a provision of emergency custody to a victimized parent. These temporary protective orders may include arrangements for safe places to exchange the child, and further limitations designed to limit the abuser’s communication with the victim. A court may order emergency child custody once the petitioning parent has filed a motion for temporary custody with the proper local authorities. Although this process varies by state, typically the court will hear all relevant evidence and make their decision within a short period after the temporary orders are filed.
In many cities and counties, victims of abuse can file a protective order 24 hours a day. This means that victims do not need to wait for a specific day or time to take protective action for themselves and their child. It is important to note that, even if a parent has been violent with the other parent, that may not be enough to prevent the abuser from visiting with their child.
If an order has been issued allowing the abuser visitation rights, both parents must adhere to the order until the implementation of a temporary protective order. Alternatively, either parent can file for a modification of the original issued visitation order. Failing to follow a court ordered visitation schedule could result in severe consequences from the court, including losing custody of the child.
What Legal Options Do I Have?
Once again, it is important that you fully comply with your current court ordered visitation schedule. However, it is important to continue documenting any abusive behavior while adhering to the order so you can file for a temporary protective order. These orders provide immediate but temporary assistance and can order:
- No contact between the parents;
- Temporary custody of the child to one parent;
- Limited, supervised, or no visitation rights to the abusive parent;
- Removing the abuser from the family home, and preventing them from returning; and
- Appointing a relative to coordinate visitation between the parents, in a safe manner.
In some states, emergency custody petitions may be awarded in any instance of violence against one parent. In others, the violence must have been directed towards the child. Final custody petitions should be filed, even if emergency assistance has already been filed. This is due to the fact that it could take several months to receive a final hearing and order regarding final custody.
As such, filing as soon as possible is important. In many courts, a parent can file both emergency custody and full custody petitions at once. However, some courts require that the parent seeking emergency custody first file a formal custody, before their emergency petition will be heard.
Do I Need an Attorney to Modify Child Visitation Based on Domestic Violence?
A skilled and knowledgeable child custody attorney can assist in your attempts to take visitation rights away from a domestic abuser. Additionally, an experienced child custody attorney can inform you of your state’s laws and processes on child visitation, as well as file all required paperwork on your behalf. Finally, they can represent you in court as needed.