Beyond Awareness: Advocating For Children’s Safety In Family Court
By Diana Griffin, Attorney Advisor, National Legal Center on Children and Domestic Violence
In November, following Domestic Violence Awareness Month, we continue the conversation by focusing on children’s safety in custody cases involving family violence. Access to representation helps survivors advocate for their own and their children's safety. Yet, in 80–90% of family cases, at least one party is self-represented.1 When survivors represent themselves, they are forced to navigate personal advocacy, confronting their abuser, and promoting the best interest of their children.2 Therefore, it is important for courts and practitioners to be trauma-informed and trained in family violence dynamics, so they can tailor responses that account for the safety of survivors and their children. This article offers resources for self-represented litigants to better navigate family court and request relief centered on child safety.
If you do not have representation in family court, there are steps you can take to best prepare for your case. First, you should reach out to your local legal services organization or domestic violence center.3 If your local legal services agency cannot represent you, they may still be able to provide advice and offer general guidance. Second, your local court’s self-help center or law library can help you locate resources, like your state’s laws or the paperwork needed for the court clerk. Lastly, you can access self-help resources created by BWJP or other organizations that give tips on representing yourself in court.4 Be sure to always check your state’s laws before you file or appear in court.5 Below is some general guidance on preparing for custody cases and prioritizing child safety.
It is important to know your state’s child custody laws when deciding what to ask the court to order. All states decide on two different types of custody. The first is often called legal custody or decision-making custody. Legal custody refers to which parent makes the major decisions regarding the child’s wellbeing such as health, education, and religion. The second is often called physical or residential custody. Physical custody refers to which parent the child lives with most of the time. Custody labels are different than what courts refer to as parenting time or visitation. Parenting time lays out the schedule for when a child is with each parent. Remember that a parent can have parenting time without having legal or physical custody of a child.
When determining custody and visitation, courts must consider the best interests of the child. Each state has different factors to guide these decisions.6 Most states consider domestic violence in the best interest analysis. It's important that the court understands the nature and context of the abusive behaviors that occur in the home, as well as the daily implications of the abuse on the child. To prioritize child safety, a parent can request different options and interventions. For example, a parent can request visitation at a supervised visitation center, request that communication between the parent and child be limited in times per day and duration, or request which extracurricular activities the parent can attend. Most states also consider the preference of the child depending on their age. If you want your child to speak to the court, you should try to speak with a local lawyer or research what your state allows.
Courts can, and must, consider the safety of the survivor-parent by making clear custody and parenting time orders to minimize the potential for post-separation abuse. Consider requesting that the court order communication with the abusive parent through a co-parenting website or app. You may also want specific parameters regarding where parenting exchanges occur, for example, at the child’s school, and who can be present. Clearly presenting the abuse you experienced and how it impacts the best interest of the children can help you make your strongest case to the court.
There are tools available to assist both self-represented litigants and practitioners in identifying the safest possible custody arrangement for the child. The National Legal Center on Children and Domestic Violence developed the SAFeR approach. SAFeR stands for: Screen for domestic abuse, Assess the nature and context of the abuse, Focus on the Effects of abuse, and Respond to abuse in actions and decision. SAFeR is a tool designed to analyze and synthesize information in a way to improve informed decision-making for survivors of domestic violence.7 NLCCDV created responding worksheets with jurisdiction-specific best interest factors for each state and territory in the United States.8 You can use this worksheet to guide your requests for custody and parenting time. NLCCDV is available for training and technical assistance to help practitioners implement strategies to address their clients’ lived experiences of violence in their advocacy.
Please do not hesitate to reach out to us for assistance at NLCCDV@bwjp.org.
1 Knowton, N. (2016) Cases Without Counsel: Research on Experiences of Self-Representation in U.S. Family Court, 1 https://iaals.du.edu/sites/default/files/documents/publications/cases_without_counsel_research_report.pdf
2 NLCCDV Table Talk - How Survivor Mothers have to Navigate Family Court https://bwjp.org/site-resources/nlccdv-and-how-survivor-mothers-have-to-navigate-family-court/?section_slug=child-custody-and-support
3 U.S. Department of Justice: List of Pro Bono Legal Service Providers https://www.justice.gov/eoir/list-pro-bono-legal-service-providers (Accessed October 31, 2024) and National Domestic Violence Hotline: Local Resources https://www.thehotline.org/get-help/domestic-violence-local-resources/ (Accessed October 31, 2024)
4 Battered Women’s Justice Project, Technical Assistance, Self-Represented Litigant Series https://bwjp.org/technical-assistance/
5 WomensLaw.org: Legal Information: General: Custody https://www.womenslaw.org/laws/general/custody
6 See, WomensLaw.org: Legal Information: General: Custody https://www.womenslaw.org/laws/general/custody
7 Safer Approach to Decision Making in Domestic Related Child Custody Disputes (August 8, 2018) https://bwjp.org/site-resources/safer-approach-to-decision-making-in-domestic-related-child-custody-disputes/?section_slug=child-custody-and-support
8 SAFeR responding worksheets are available by jurisdiction. Please email nlccdv@bwjp.org to request a copy for your jurisdiction.
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