It is usually in the best interest of a child to have regular and frequent contact with both parents when possible. Of course, it is also in the best interests of parents and children not to be subjected to threats and harm at the hands of an abuser. Sadly, sometimes these goals are in direct conflict with one another. When one parent is abusive to the other, how does an order of protection affect child custody? How can courts promote strong relationships between parents and children when there is a history of domestic violence?
The short answer is that domestic violence can and does affect child custody, even if that violence is not directed at the child. Utah Code Section 30-3-10 says that when making a custody determination, a court shall consider the best interest of the child and may consider (among other factors) “evidence of domestic violence, neglect, physical abuse, sexual abuse, or emotional abuse, involving the child, the parent, or a household member of the parent.”
People often confuse restraining orders and protective orders, but there are important differences. A restraining order is a civil order usually attached to an active court case, ordering one of the parties not to take some action. A protective order is designed to protect the safety of the person who has it, and does not need to be attached to a case. Importantly, there can be criminal penalties for violating a protective order, and a person who violates a protective order can end up in jail. In this blog post, we will be talking about protective orders.
In order to receive a protective order, a person who is claiming that they need protection from an abuser must convince the court that the order is necessary. They may present witness testimony, police records, medical records, or other evidence of abuse. If someone has a protective order against the other parent of their child, the existence of that order can be used by the court in the child custody case as “evidence of domestic violence...involving...the parent.” In other words, the court will take domestic violence into account when considering what is in the best interest of the child.
Evidence of domestic violence affects both legal and physical custody, but in different ways. In Utah, legal custody is the right to make major decisions in a child’s life, such as those about education, medical care, and religion. Physical custody refers to the parent with whom the child lives most of the time; the other parent is said to have “parent-time” with the child.
It is generally presumed that it is in a child’s best interests for both of their parents to have joint legal custody—to work together to make important decisions for a child. However, there are exceptions to that general rule, and one of them is a history of domestic violence in the family. A victim of domestic violence who has a protective order against the other parent can successfully overcome the presumption that joint legal custody is best for the child. That parent might then be granted sole legal custody. The parent with the history of threats or abusive behavior could be shut out of the process of making major decisions in the child’s life.
There is no presumption regarding physical custody, but as noted above, courts do take domestic violence into account when determining custody, including physical custody. Unsurprisingly, if one parent has a protective order against the other, it is very unlikely that the parent with the order against them will be granted physical custody.
That doesn’t necessarily mean that the parent against whom the order was obtained will be denied parent-time with the child. Depending on the circumstances, he or she could receive more limited parent-time, supervised visitation, or be denied custody altogether. Remember that although evidence of domestic violence is an important factor in Utah custody determinations, the court must take all relevant factors into consideration. If the court feels it is in the child’s best interests to have a continuing relationship with the parent accused of abuse, the court will try to facilitate the relationship even as it prioritizes the child’s safety.
Most people who seek protective orders do so honestly, with the intent to protect themselves and their children. However, there are some people who seek a protective order under false pretenses, with the intention of gaining an unfair advantage in a child custody case. If the other parent of your child seeks an unjustified protective order against you, you must oppose it. Even if you don’t want to have contact with your former partner, allowing an order of protection to stand when it is not warranted could limit your access to your children, give your ex-partner the opportunity to alienate your children from you, and could cause you to lose custody or parent-time altogether.