Best Interests Factors
All state courts base custody decisions on the best interests of the child. Judges measure each parent's suitability as the custodial parent against a list of statutory factors. Many of these factors emphasize stability in your child's life – courts don't want to pluck a child from one home and move him to another without very good cause. If the abusive parent is the one your child has been living with throughout your divorce proceedings, you'll have to overcome this hurdle with solid proof of the abuse. If your child is old enough, many states take his preference for a custodial parent into consideration as a best interests factor. You may arrange an opportunity for him to speak with the judge and convey his feelings.
Request a Custody Evaluation
The judge probably won't just accept your word for it that your child is being emotionally abused. You may find someone to offer an expert opinion. One way to accomplish this is to request a custody evaluation as part of your divorce proceedings. Typically, the evaluator is a psychologist, so he would have the training to pick up on signs of abuse, including hints that your child is being verbally attacked or bullied by his other parent. An evaluator's investigation typically includes interviews, as well as psychological testing of both parents, so he may also detect clues in your spouse's behavior. You can inform the psychologist of your concerns, but he cannot be anyone who has treated your family in the past -- he must be neutral. After evaluating your family, he will issue a report of his findings to the court.
Request a Guardian ad Litem
In some states, a guardian ad litem is part of a custody evaluation. In others, a GAL may act instead of a psychologist. GALs conduct their own investigations, and they also usually include interviews with both parents, as well as with siblings, teachers and pediatricians. Generally, the GAL will provide a report to the court, just as a custody evaluator does, complete with recommendations for custody. If the court in your state doesn't automatically use both a GAL and a psychologist in divorce custody disputes, you can usually request one in addition to a custody evaluation. GALs look out for a child's best interests in divorce proceedings; sometimes, GALS are attorneys.
If your child is being emotionally abused, you may not want to try to handle your divorce without a lawyer. If you seek an attorney's help, he has several tools at his disposal to help you get your allegations before a judge. He can depose your spouse, your spouse's witnesses, and other individuals in your child's life, asking them questions under oath so he can gather facts to present at trial. He can call these individuals as witnesses at trial as well. He can present a case showing that your child's best interests would not be served by placing him with an abusive parent.
Get Your Facts Straight
It's important to keep in mind that occasional blow-ups and bad tempers don't always mean a parent is emotionally abusing his child. According to the American Humane Association, emotional abuse is a repetitive and ongoing thing, persistent enough to cause your child psychological harm. If, after a custody evaluation, the psychologist tells you that your child is not being emotionally abused, you may get a second or even third opinion before you continue to fight the fight. If the evaluator is right, you could lose a lot if the court determines that you've made false allegations in an attempt to sever your child's relationship with his other parent. You could be denied custody, or even visitation.