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Raleigh Divorce Blog

How Does a Domestic Violence Charge Affect Custody?

Sadly, many American children still witness domestic violence between parents, and instances of interparental violence can lead to child abuse. The occurrence of domestic violence in a relationship, or even an accusation of domestic violence, will affect the outcome of a child custody matter.

Domestic Violence and the Child’s Best Interest

Whether the parents resolve a child custody dispute through negotiations or if the dispute goes to court, the final decision must always be in the child’s best interest. North Carolina General Statute 50-13.2(a) explicitly requires judges making child custody decisions to consider whether domestic violence has occurred and what arrangement will promote the child’s safety.

If a court receives convincing evidence of domestic violence, including a conviction, the court must revise its custody order to protect the child and any victims. For example, a judge may:

  • Limit visitation privileges or revoke them entirely
  • Require supervised visitation
  • Revoke parental rights from the convicted person, granting primary custody to the other parent
  • Grant primary custody to another guardian

Domestic Violence and Custody Orders

The General Statutes contain due process measures to protect parents falsely accused of domestic violence. Chapter 50-13.2(a), for example, states that neither parent is presumed to be the better parent for the child to live with. Even if one parent is charged with domestic violence, that does not necessarily mean that barring them from having joint custody or visitation would be in the child’s best interest.

These laws extend to accused parents who are absent in related hearings and to parents who have left North Carolina after an accusation of domestic violence. There is still no presumption that a custody order against them would be in the child’s best interest.

Judges will consider the answers to the following questions, among others, when they make any decision involving child custody and domestic violence:

  • Was one of the parents convicted of domestic violence?
  • What was the nature of the violence, and how often did it happen?
  • Did the child see the violence happening?
  • Did the violent acts also involve child abuse?
  • How likely is it that the parent will commit acts of domestic violence again?

The answers to these questions will determine how the judge assigns custody in an original custody order or the changes, if any, that a judge makes to an existing custody order.

However, if the judge decides that it is in the child’s best interest to keep in contact with both parents, visitation orders may allow visitation with the accused or convicted parent.

Protective Orders and Child Custody

If you suffered spousal or interparental violence and do not want your children to be in contact with the abusive parent, the “no-presumption” doctrine means that you and your legal team will need to take other actions in addition to pursuing primary custody. Parents in this situation commonly decide to pursue a Domestic Violence Protective Order (DVPO).

You could obtain a DVPO against the abusive parent if you can prove they:

  • Injured you or attempted to injure you
  • Threatened you with the possibility of injury
  • Are harassing you in at least two ways
  • Committed a sexual crime against you

After you file a request, you and your legal team will participate in at least two civil court hearings, one of which may include the accused parent. They can either accept the order or present a defense.

If the court grants you a DVPO, the abusive parent must not visit, contact, or be in the same place as you for one year from the date the court granted the order. If they fail to follow the terms of the order, they could be arrested for contempt of court.

A judge can grant a DVPO for two years maximum. You can petition the court to renew the order when it nears expiration, but you may need to attend another hearing and prove “good cause.” You can renew the order as many times as necessary if there is sufficient reason each time. A DVPO may award temporary custody and set temporary visitation rights, possibly with conditions, if required.

Consult a Raleigh Area Child Custody Lawyer

The Raleigh child custody lawyers of Marshall & Taylor PLLC represent clients in child custody matters related to domestic violence. We take a compassionate, supportive approach to fight for your dignity and the best outcome for your children. For a confidential consultation, call our office today at (919) 833-1040.

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