Defining Abuse

You may be wondering whether you can count on the family law court to help you if you have suffered non-physical abuse.

Family courts agree that exposure to abuse – both physical and verbal can be harmful for children. Such exposure includes hearing a violent event, witnessing the abuse of a parent or sibling, intervening, being used as a shield against abusive actions, experiencing the aftermath of a violent event including police involvement. The impact of exposure to domestic violence can be long-lasting and can result in the child becoming depressed, anxious, developing low self-esteem, engaging in substance abuse, and an inability to form trusting relationships with others.

There are different forms of non-physical abuse that can be viewed as domestic violence.
Your partner may harass or intimidate you by making threats against you and rightfully so you would fear for your safety. Here are some common examples:
• send you repeated emails or texts
• use derogatory language against you
• threaten to go bankrupt or to become unemployed to avoid paying child/spousal support
• damage or threaten to damage your property
• use financial restrictions to control you
• isolate you from family and friends to control you
• stalking
• expose the children to threats of violence against you
• make disparaging remarks against you to the children
• Disparage you in front of teachers, friends, and others

Cumulatively or individually depending on the extent of such behavior, the court may conclude that you are a victim of abuse.

However, domestic violence is not arguing with your spouse or demanding behavior by your spouse; it is not a situation where you are equally combative; it is not provocation where your spouse says something to “push your buttons”. In other words, the family law courts do not require us to be “nice people” to each other.

The difficult task is to prove abuse. This often takes the form of a “he said” “she said” scenario, which means proving the violence turns largely on the court’s assessments of each party’s credibility. You must be able to provide evidence of controlling and coercive conduct and of exposure of such conduct to the children.

If abuse is proved in family court then there are several possible court orders that the court can make. The court can order supervised access by the abuser to the children at a supervised access center or to be supervised by a trusted adult. The family court may also issue a protective order against the abuser. It also can have a factor when determining alimony and/or a monetary award.

The form of parenting arrangement ordered by the court can vary depending on the circumstances. The court will consider such factors as:
• whether the violence was an isolated incident
• relatively minor (a shove)
• out of character
• accompanied by genuine remorse
• responsibility taking, and
• did not induce fear

If so, then joint custody and shared parenting may still be one possible court order.

Joint legal custody means joint decision-making. This type of parenting arrangement is determined regardless of where the children reside (with a primary caregiver or equally between caregivers). In either case, the parents must jointly decide on all major decisions affecting the children regardless of who may be the residential parent. Where there has been a clear history of poor communication, coercive interactions, inability to problem-solve, and a lack of child-centered focus by one or both parents joint legal custody is unlikely to be ordered. A serious mental health problem or substance abuse suffered by one or both parents would also not lead to this parenting arrangement.

Sole custody means that one parent is clearly in charge of all major decisions and the non-custodial parent generally has more limited child contact but access to important information about the children (e.g., school reports) will still be available to him or her. There may be a sole custody arrangement without supervised exchange or access or with supervised access/exchange.

Rarely does the court order that there shall be no contact unless the parent presents an ongoing and significant risk of violence to the other parent or children.

Overall, it’s important to understand that family court does protect you and your children in the case of non-physical abuse but you must prove your case with evidence of behavior that has caused you fear for yourself and your children.