Determining Child Custody in Divorce Cases Involving Domestic Violence

A mother protects her child from father violence. Divorce involving child custody and domestic violence.

Many people who have experienced domestic violence in their marriages fear that they will lose custody of their children to the abusive spouse. Although Missouri courts favor joint custody whenever possible, an exception may sometimes be made in cases involving domestic violence. But while instances of domestic violence are a critical factor that must be weighed in custody cases, an alleged abuser will not necessarily be denied their parental rights. A judge will consider the best interests of the child first and foremost in deciding a custody matter.

What is Considered Domestic Violence?

Domestic violence can be defined as a pattern of abusive behavior in a marriage or relationship that is used by an individual to control their partner. Rather than being an isolated incident, it is a repeated series of coercive behaviors. Notably, domestic violence can be physical, emotional, verbal, or psychological. It can also come in the form of actual, attempted, or threatened violence.

How Does Domestic Violence Affect Child Custody in Missouri?

In Missouri divorce cases involving children, physical custody and legal custody must be decided. While physical custody refers to where the children will live, legal custody determines who will make crucial decisions on their behalf. Custody can be “joint,” and shared between the parents, or “sole,” and belong only to one. In some cases, third-party custody can be awarded to a grandparent or other relative allowing them to become the child’s legal custodial.

When deciding child custody matters, courts must take domestic violence into consideration. Specifically, a judge will evaluate whether the domestic violence affected or was directed toward the child. It will also look at evidence of the abusive parent’s history of domestic violence toward the other parent. A court will also examine the following factors:

  • The parents’ wishes regarding custody and any proposed parenting plan
  • The needs of the child for frequent, meaningful, and continuing relationships with both parents
  • The ability and willingness of each parent to actively perform their function of mother or father to the child
  • The interaction and relationship of a child with their parents, siblings, and other significant individuals in their lives
  • Which parent is more likely to allow frequent, meaningful, and continuing contact with the other
  • The child’s adjustment to their home, school, and community
  • The mental and physical health of all parties involved, including any history of abuse
  • Whether either parent intends to relocate with the child
  • The child’s wishes

If a child has been adversely affected by a parent’s domestic violence toward the other, it’s important to raise evidence in court that shows how their emotional or physical safety has been threatened. For example, they may suffer from aggression, depression, anxiety, or have problems in school — medical or school records and testimony from relevant parties may be used to demonstrate the impact the domestic violence has had on the child. In the event that the court finds awarding custody to the abusive parent is in the child’s best interests, the judge must enter written findings of fact and conclusions of law.

Can a Parent Obtain Reasonable Visitation Rights in a Domestic Violence Case?

Missouri law provides that frequent and meaningful contact with both parents is in a child’s best interests. A parent who is not granted custody is entitled to reasonable visitation — unless their health or emotional development would be impaired or endangered by the visitation. A court is required to consider evidence of domestic violence in determining visitation rights and is permitted to find that visitation with the abusive party is in the child’s best interests.

The court is required to consider a parent’s history of inflicting physical harm, bodily injury, or assault on the child, as well as any tendency to inflict harm or the fear of physical harm or injury. A court will not grant visitation rights to the parent without custody if they have committed a certain crime in which the child was the victim. Visitation must be granted in a manner that protects the child, and the parent who is a victim of domestic violence, from further harm.

In some cases, a court might deem it appropriate to grant supervised visitation rights to the abusive parent. However, when a parent’s visitation rights have been restricted, they must show the court proof of treatment and rehabilitation before unsupervised visitation can be ordered. With a supervised visitation arrangement, the parent and child will never be left alone. Rather, visitation would take place in the presence of a responsible adult who is appointed by the court for the protection of the child.

Supervised visits are usually limited to a weekly one-hour visit, unless the court order specifies otherwise. Two hours weekly is the maximum amount of time that can be imposed.

Contact an Experienced Missouri Divorce and Family Law Attorney

Divorces involving domestic violence can be complex. It’s best to have the guidance of a knowledgeable divorce and family law attorney who can walk with you through every step of the legal process and ensure the best outcome for you and your child. Divorce and family law attorney Mark A. Wortman provides reliable representation to clients in the greater Kansas City, Missouri area who are facing divorce and child custody matters. To schedule a confidential consultation to learn how he can assist you, please contact him today online or by calling (816) 523-6100.