When parents divorce, it is the obligation of the court to ensure the safety and well-being of any minor children. The assault of a child by a parent creates a strong lack of certainty that the parent is able to sufficiently care for the child. Although domestic violence is typically not a complete bar to parenting time, any custody or visitation order will take the assault into account and take steps to prevent the behavior from recurring.
When the parents of minor children divorce, a court must decide how to divide parenting responsibilities. Sometimes, the parents enter into an agreement about sharing parenting time and the court may or may not approve the terms. The time each child spends with a parent is known as "physical custody." By contrast, "legal custody" refers to the authority a parent has to make major decisions for the child, such as where the child attends school or religious services. Physical custody is rarely split 50-50, but the term "shared custody" typically means that both parents have some overnights with the child, whereas "visitation" often means that one parent has sole physical custody, but the other parent has some contact with his child. Different terms are used differently in various jurisdictions, however.
Judges are charged with crafting a custody arrangement that furthers the best interests of the child, typically based on their own discretion as well as on several factors outlined in state law. The law generally considers regular and continuing contact with both parents important for a child, but the child's physical and emotional well-being takes precedence. In cases where a parent has assaulted a child, the well-being of that child is certainly called into question, and most states have a broad definition of assault, which includes not only physical abuse, but also placing the child in fear that physical abuse could occur. Some states, like Tennessee, create what is called "presumption" against awarding custody to a parent who has been convicted of a crime against the child. This makes the abuse a much stronger factor weighing against custody, and can only be overcome by very strong evidence that a shared or sole custody arrangement involving the abusive parent is in the child's best interests.
In cases of domestic abuse, a court may still be persuaded that a parent should have access to his child, provided appropriate safeguards can be put in place. One option is to order supervised visitation. Supervised visitation might require that a parent see his child in a certain safe location, such as a supervised visitation center, or require that a trusted third party accompany the parent during the visits. A judge will look at what resources are available and the specific circumstances of each case in determining if supervised visitation is an effective option.
Modification of Visitation
Although the assault of a child is a very serious offense, judges generally have the freedom to revisit custody determinations as time goes on. If a parent is able to demonstrate that he is no longer a threat to the child, the court may be persuaded to grant more parenting time on an incremental basis if it serves the child's best interests. In many states, a child's preferences also come into play if he is old enough. For example, a court might order supervised visitation for several months, followed by normal visitation after a period, provided there have been no problems and the parent has followed any requirements of the court, such as completing an anger management course. Following a trouble-free period under this type of arrangement, the court might even consider a shared custody arrangement in the future.