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How Does Domestic Violence Affect Child Custody and Visitation?

How Does Domestic Violence Affect Child Custody and Visitation?

By: M. Scott Gordon

People with children often stay in an abusive relationship in an effort to protect the children. While this may seem strange, the abused may remain because they are afraid that the abuser would be awarded custody in a divorce. While there is no set law that spells out which parent gets custody in a divorce, a judge can consider the presence of domestic abuse in a relationship in making a custody judgment.

Custody Determined by the Best Interests of the Child

Illinois judges are required to consider the best interests of the child when making decisions on child custody issues. In fact, the judge is supposed to presume that unless there is domestic abuse involved, both parents working together for the mental, physical and emotional health of the child is in the best interest of the child. Furthermore, in order to determine the best interests of the child, a judge may consider several factors, including the following;

  • The mental and physical health of the adults and the children involved;
  • Any physical violence or threat of violence by a parent or other potential custodian seeking custody – either against the child or another person; and
  • Any ongoing or repeated abuse either against the child or another person.

Domestic violence or abuse as used here refers to stalking, mental abuse, harassment and intimidation, as well as physical acts of violence.

If the judge considers the credible evidence of domestic violence presented, he or she would be unlikely to grant custody to an abuser. In some case, if the victim’s attorney requests it in a divorce proceeding, a judge can issue an order of protection to keep the abuser from harming the victim any further.

Similarly, with visitation, the court generally awards a parent reasonable visitation unless the court finds that visitation would seriously endanger the child’s physical, mental, moral or emotional health. The judge would conduct a hearing in order to make this determination. The judge may award visitation to a party suspected of domestic abuse in some cases, but may order the visitation to be supervised. If the suspected abuser is granted visitation, and the victim’s address is kept from the suspected abuser, the judge can order the visitation to take place at another person’s address, or at a public area or facility.

If a person is convicted of first degree murder of a parent, grandparent, great-grandparent, or sibling of a child, they cannot be granted visitation unless a judge finds, after careful consideration of the best interests of the child, that visitation would not be harmful to the child mentally, physically, emotionally, or morally. If a visitation order is not in place, no one should take the child to visit a parent convicted of first degree murder of one of the people listed above (contact an attorney). If visitation has already been granted, a parent or legal guardian can bring a motion to modify or revoke the grant of visitation rights.

Contact an Illinois Family Attorney

If you are the victim of domestic violence and going through a divorce, you may be worried about the court granting custody or visitation to the abuser. Contact our compassionate and experienced divorce attorneys at M. Scott Gordon & Associates for a consultation on your case.