Child custody is one of the most emotionally-charged matters for a family law attorney, and they are almost never “simple.” When domestic violence is a factor, the case becomes that much more complicated. 

Domestic violence is the pattern of intentionally using violent and/or controlling behaviors to gain power and control over a family member or dating partner. This behavior can take place during the relationship or after the relationship has ended. There are several forms this type of violence can take: physical, sexual, psychological, financial, and misuse/manipulation of systems to name a few. Currently, our statute focuses primarily on the physical, sexual, and psychological forms of domestic violence. 

Chapter 50B of the North Carolina General Statutes provides domestic violence relief in the form of a protective order. N.C.G.S. §50B-1 requires someone seeking protection to show at least one of the following was done to them as a result of a personal relationship: 

1. Actual or attempted physical injury 
2. Fear of imminent serious bodily injury or continued harassment as it is defined in G.S. 14-277.3A causing substantial emotional distress
3. Sexual assault

Oftentimes, the Court is asked to make child custody determinations where domestic violence is or has been present. 

Contrary to popular belief, an offending parent will not automatically be denied custody or visitation of a shared child unless the offending parent is criminally convicted of certain forms of domestic violence related to sexual assault. Rather, parents with a history of domestic violence are often required to continue interacting on some level with each other as well as the child in order to facilitate a custody arrangement and some form of co-parenting or parallel parenting. 

When it comes to determining the custody and visitation arrangement for a child, the Court is given significant latitude to decide what is in the best interest of the child in light of various factors, including the presence of domestic violence. The Court is also contending with the constitutional right of a parent to parent their child. With these serious considerations, the stage is set: in child custody proceedings where domestic violence may be a factor, the Court is charged with first determining if domestic violence has occured. Then the Court is charged with  developing an arrangement that would allow for custody/visitation to continue while ensuring the safety of both the child and victim-parent during child exchanges. In light of the constitutional, parental, and safety rights involved, the Court’s aim is to limit the opportunities for domestic violence while ensuring the child’s best interest. 

Once the Court determines that domestic violence has taken place, they are required to consider several factors including the specifics of the domestic violence (severity; exposure or involvement of the child, etc), the safety of the child moving forward, and the safety of the victim-parent at future exchanges. 

If the Court feels there are protective measures available to ensure the safety of the child and the parent moving forward then it is very likely, if not guaranteed, that custody/visitation will be granted to the offending parent. Some of those protective measures may include conducting exchanges in public space, a police department, or supervised exchange centers; the appointment of a parenting coordinator; and/or temporary supervised visitation for the offending parent. The inclusion of such measures to a child custody order is completely within the Court’s discretion and is based on what the Court feels is necessary to provide for safety moving forward. Note further, it is possible for the Court to determine that domestic violence was present, and also decide not to include any of the protective measures listed above are appropriate because inclusion of said measures may not be in the child’s best interest. 

For this reason, it is important at a child custody hearing or trial to include as much evidence as about the prevalence of domestic violence as well as its specific impact on the child. This evidence could include journal entries; pictures of injuries; witness testimony of domestic violence incidents; police reports; domestic violence protection orders; hospital records of injuries; documentation of behavioral changes of the child; and/or medical or mental health professionals’ statements regarding the impact to the child. 

Whether or not the Court includes protective measures to a child custody order, it is always advised to develop your own protective measures as you continue moving through the family court system and as you co-parent with the offending parent. Those measures may include attending child exchanges with an adult witness; creating boundaries around how you communicate with the offending parent; documenting interactions with the offending parent; staying in communication with your attorney and informing them if there is any escalation of behavior by the offending parent; or keeping a record of significant changes in your child’s behavior. Keep your attorney informed on a regular basis about any incidents that may occur since the legal options and relief available may change over time. 

For more information on domestic violence and safety planning please contact: 

Safe Alliance - 980-771-4673

Mecklenburg County Community Support Services - 704-336-3210

North Carolina Coalition Against Domestic Violence - 919-956-9124

If you are in a domestic violence situation and you want to make sure your children are protected, our Modern Legal team is here to help. 

Please note: these educational materials are based on North Carolina law where my legal practice is based. While the insights may have wide applicability, readers should consult with an attorney regarding the specific laws in their state or country. 

Written by: Tiffany A. Byrd