How Do I Get Sole Custody After Domestic Violence (a Guide for Mothers--and Some Fathers) STAFF PICK

Carolyn Annette Elsey

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Family Law Attorney - Sumner, WA

Contributor Level 15

Posted about 5 years ago. Applies to Washington, 20 helpful votes

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Parenting Plans

Allegations of DV alone are not necessarily enough to get custody of your child. The courts have to consider a number of statutory factors and parenting functions to decide what the parenting plan will look like. Below is a link to those statutes. The existence of DV, especially if established by criminal conviction or other witnesses, is often a basis for restricting the other parent's contact with the child. All of the bases for restrictions are contained in a link below. Even if there is no legal proof of DV, a parent's time with the child may be restricted because of "the abusive use of conflict by the parent which creates the danger of serious damage to the child's psychological development." This covers a multitude of situations. It is important to be specific about acts of DV and whether the child was exposed to those incidents. Courts will not cut off a parent entirely even with DV. Restrictions are intended to maintain a parent/child bond in a healthy way.

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Specific Restrictions

Restrictions should let the child have a relationship with the parent while providing for safety. Restrictions include restraining orders prohibiting contact outside of visitation times, supervised visitation pending evaluations or classes, monitored phone calls, services such as a DV assessment with collateral contacts (meaning the assessor speak to you directly for additional information) or anger management classes. You can ask for anger management or whatever you want from the court, but be aware that not all DV is about anger management. DV is an abusively controlling relationship. Some DV perpetrators have impulse control problems rather than anger management problems. Some need batterer's treatment instead of anger management classes. The best thing is to ask for an assessment with collateral contacts and that he follow through with recommendations before visits are liberalized. Make sure restrictions take into account upcoming holidays to prevent going back to court.

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Potential Traps

Unfortunately, domestic violence has become the golden password for many people and, as such, has been badly abused. Even though there is no "typical" DV victim, you do want to avoid causing suspicion that you are simply using DV to get the child. One common tell-tale sign of manipulation is when the "victim" insists on dictating every aspect of the parenting plan. People go to absurd lengths, such as demanding that they (the victim) be the supervisor for the "abuser's" visits and those visits be in the "victim's" home! If you are a victim, don't put yourself in a position of having to have a lot of contact with the "abuser" because it looks like you aren't fearful and actually want to be around the "abuser." Also, don't frame everything as you being victimized. While very sympathetic, the court can only do so much. Get help from a DV victims' support group if necessary.

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Changing the Parenting Plan

No parenting plan can anticipate every possible thing, but there are ways to make changes. If there are restrictions in the parenting plan such as supervised visitation, make sure the parenting plan says clearly what has to happen for the supervision to end. This will avoid a lot of grief and "negotiating" or even unnecessary litigation. Parenting plans can automatically stop visitation supervision once the parent completes certain things. If the parenting plan is not clear about changes in the future, you can do a minor or a major modification. A minor modification is one that doesn't affect more than 24 overnights per year and is based on a substantial change in circumstances for either parent or the child. A major modification is hard. It's based on a substantial change of circumstance for the child or the other parent (not the one asking for modification) and several other factors. Please see the link below for the modification statute. It's a huge uphill climb.

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If an Emergency Arises

The two most common emergencies are when the other parent wants their visit and something has happened that makes visitation more risky for the child. For example, the dad has just been arrested on a DV with another victim or got a DUI. In such a case, you need to go to court prior to the upcoming visit for an emergency order to stop the visit. You CANNOT stop a visit yourself NO MATTER HOW SERIOUS THE EMERGENCY. Only the court can suspend or cancel a court order. The other type of emergency is when the other parent refuses to return the child after a visit. This happens with some frequency, but it's usually not as depicted on TV and in movies where the parent flees far away. Often they have the child at their home and are trying to get the child to change their mind or are pouting about not getting along with you. To handle this, you need to go to the court and get an order to show cause for contempt. That will require that the parent return the child and answer to the court.

Additional Resources

WA Definition of Domestic Violence

Basis for Restrictions in a Parenting Plan

WA Parenting Plan Factors for the Court

Parenting Functions Defined

WA Contempt Court Forms

WA Modification Statute

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