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Child Custody Determination in Cases Involving Intimate Partner Violence: A Human Rights Analysis

By Jay G. Silverman, Cynthia M. Mesh, Carrie V. Cuthbert, Kim Slote & Lundy Bancroft

Family courts often ignore the danger of awarding child custody to perpetrators of domestic violence.  Men who abuse female partners very often abuse the children of these women.  Child custody and visitation arrangements provide an opportunity for abusive men to continue to control women and their children.  Also, fathers who seek custody of their children through family court often obtain either primary or joint physical custody. Under human rights law, governments are obligated to prevent violations of the rights of individuals.  To our knowledge, this is the first study regarding child custody and domestic violence that includes even a small sample of Latina survivors of domestic violence.

  • Thirty-nine women representing 10 of the 13 Massachusetts family courts participated in the Battered Mother’s Testimony project. Latinas comprised only 5% of the study.
  • Participants were interviewed to document the experiences of battered mothers through the family court districts and identify potential human rights violations.
  • The study consistently found potential human rights violations against the women participating in the project and their children, including:
    • Granting or recommending physical custody of children to men who had used violence against the mother or against both the mother and children.
    • Granting or recommending unsupervised visitation of children to men who had used violence against the mother and/or the children.
    • Not considering relevant evidence of intimate partner violence in cases of disputed child custody.
    • Not investigating allegations nor considering documentation of child abuse in cases of disputed child custody.

  • The results of this study suggest that family courts in Massachusetts may not be protecting battered women and their children.

  • Under the United Nations Declaration on the Elimination of Violence Against Women, countries need to do everything possible to prevent violence against women and under the Convention on the Rights of the Child the government is responsible for protecting children from abuse. 

Silverman, J.G., Mesh, C.M., Cuthbert, C.V., Slote, K., &Bancroft, L. (2004).  “Child Custody Determinants in Cases Involving Intimate Partner Violence: a Human Rights Analysis.”  American Journal of Public Health, 94(6), 951-957.

 

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For help please call:

The National
Domestic Violence Hotline:

1-800-799-7233 (SAFE)

The New York State Spanish Domestic Violence Hotline:

Español:
1-800-942-6908

English:
1-800-942-6906

 
   

©2007. National Latino Alliance for the Elimination of Domestic Violence.
All Rights Reserved. Last updated 12/13/07.