My ex was abusive. He won’t get custody. Right?!

This has been one of those weeks where the reality of family court slams headfirst into logic and common sense. I’ve had a couple of conversations with mothers who believe that the evidence they have of domestic violence and abuse will be enough to protect their children and ensure they have primary custody.

Those of us who have lived in this system will tell you that is not what we see happen day in and day out (that’s not to say that *some* people aren’t able to protect their children). The Leadership Council on Child Abuse and Interpersonal Violence found that “more than 58,000 children a year are ordered into unsupervised contact with physically or sexually abusive parents following divorce in the United States.”

Reality #1: Domestic Violence is only one factor in determining the best interest of the child in divorce.

And it is not necessarily weighted any higher than the other factors. One of the other considerations is the ability to maintain a relationship with (and even speak highly of) the person who abused – or even threatened to kill – you. As I’ve shared elsewhere, my ex husband threatened to strangle me. And I was still admonished by the court for not liking him. The court seemed to take the approach that my not liking him would cause me to make up the story about the strangulation instead of the more logical explanation that his behavior caused me to have deep fear and discomfort around him.

Reality #2: Parental Alienation has a stronghold on the family law system.

It feels to many of us in the domestic violence system that the courts would rather believe that a mother was making things up than believe the harder truth that a parent would sexually abuse their child. The minute a protective mother goes to the police or the court to get a domestic violence protection order, she is suspect of parental alienation. I will say that again: If you need help leaving a domestic violence situation because your ex might kill you, YOU (the victim) become an immediate suspect in family court.

Reality #3: Gender Bias is real.

Joan Meier at the GW Family Violence Law Center published a study in 2019 entitled “Mapping Gender: Shedding Empirical Light on Family Courts’ Treatment of Cases Involving Abuse and Alienation.” The study analyzed over 4,000 custody cases in the United States to examine how family courts handle cases involving allegations of domestic violence and parental alienation. The study  found that gender bias may play a role in how courts handle custody cases. Specifically, when fathers raised allegations of alienation, they were more likely to receive custody than mothers who made similar allegations. Additionally, when mothers raised allegations of abuse, they were more likely to lose custody than fathers who were accused of abuse.

Reality #4: Lawyers.

In my experience, family court lawyers often dismiss domestic violence claims. Many of them believe in parental alienation – in part because it’s an effective strategy for their male clients. One family law attorney I saw with multiple pages of my children’s allegations told me that we really didn’t know what was happening at my ex’s house with the kids because if we did, we wouldn’t be there (trying to fight for custody). This said to me that if the court believed me and my children there was no way they would allow him unsupervised contact. But the courts just didn’t believe me. Thousands of other protective mothers have discovered similar.

Reality #5: There is a presumption that having both parents in a child’s life is in their best interest.

Some states have gone so far as to create a presumptive 50/50 custody statute. Any parent who believes that 50/50 is not in the best interest of a child then has the burden of proof on them to prove why not. This becomes even more challenging because of the laws of evidence. In my case, my ex’s attorney filed a motion requiring strict adherence to the rules of evidence, meaning that any declarations my children made were considered hearsay and inadmissible. The court wouldn’t interview them either, so their voices and stories were ignored, and my concerns were dismissed.

—

This sounds dismal, and in some ways it is. But it’s also not hopeless. There are advocacy efforts underway in many states to change and amend the family law statutes to give domestic violence claims greater weight in custodial decisions by family court judges (including Kayden’s Law). There is a growing body of research about gender bias and abuse claims in the courts. And there are those of use who have lived experience in the courts not only speaking out about it but also helping others who are coming behind. I was ultimately able to protect my children. That alone gives me hope that others can too.