Winning Child Custody – How Does Abuse Affect Child Visitation?

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What would be the effect of a domestic violence accusation upon that parent’s child custody rights after a divorce? All child custody laws’ primary concern is the child’s best interests. At the top of the child’s best interests as defined by law are: the child’s health, safety and welfare. A parent who has been engaged in or been prosecuted of domestic violence has a very high risk of losing the relationship with his or her minor children. In some states, the law purposefully restricts or denies the perpetrator’s rights to visit or spend time with his or her children because of the past violent behavior. If you have been battered, assaulted, threatened, stalked or verbally or emotionally abused by your spouse you have all the best chances to win a child custody battle. You have the right to request and most probably obtain a restraining order banning your ex-spouse from approaching your children.

Family laws in most states establish a detrimental presumption upon the parent accused or convicted of a domestic violence case. This legal presumption forces the court to assume that the domestic violence perpetrator should be refused child custody and visitation rights. This places the accused or convicted parent in a defensive position in a child custody case. The parent charged with a domestic violent crime is less probable to win a child custody court fight. To earn any custody or visitation rights that parent must destroy the legal presumption created against him or her. That parent must rebut the premise that he or she is incapable of providing for the health, safety and welfare of the children.

To rebut the legal presumption that a parent charged with a domestic violent crime should not be entitled the right to relate to his or her children, the petitioner must bring into court significant evidence of his or her capacity to provide for the child’s bests interests. The amount of time lapsed since the crime was committed is probably the most powerful element that parent has to defend him or herself. The more time has lapsed since the crime or the accusation, the less weight the presumption will have. The effect of the presumption will significantly lessen if the crime was committed more that five years ago. Less than five years will not be of any help for the perpetrator.

Another element that the perpetrator might bring up to win a child custody fight is a certification of having attended an anger management class or any document showing he or she has undergone long and intensive psychological treatment. Anger management classes are usually ordered as part of the sentencing of a person convicted of a domestic violence crime.

Other factors to be considered by a court when awarding child custody or visitation rights in a divorce proceeding based on domestic violence would be: the type of violence the parent was found to have perpetrated, if a mortal weapon was used, the bodily damages caused to the victim, the frequency of that type of behavior, the probabilities that behavior could be repeated towards the children and the present mental condition of the perpetrator. The children’s and the ex-spouse’s preference can also be taken into account. The past and present bonding existent between the perpetrator and the children could be brought up to the court’s attention. If this evidence turns to be favorable to the perpetrator, he or she might decrease or invalidate the effect of the legal presumption, thus increasing the changes of getting limited custody or supervised visitation rights. As a victim of a domestic violence crime seeking for the custody of your children you now know what sort of defenses your ex-spouse may raise to fight back your petition.

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