A friend recently asked me how domestic violence affected child custody decisions in Oregon. The answer is that serious domestic violence between parents can, and usually does, lead to custody being awarded to the victim. In Washington, however, the law generally requires a history of violence, sexual assault, or a serious injury or fear of serious injury resulting from domestic violence before the court will take it into account when deciding child custody or visitation.
In both Oregon and Washington, the underlying question in a child custody dispute is what decisions on custody and parenting time would be in the best interest of the children. The Oregon child custody law, however, weights the decision against a parent who engages in domestic violence against the other parent. When domestic violence is severe enough to justify an abuse prevention order, the law presumes that giving custody to the abusive parent is not in the child’s best interest.
Compared to other states, Oregon requires relatively little domestic violence to justify an abuse prevention order. Attempted injury, intentional, knowing or reckless causation of injury or fear of injury, or sex caused by force or threatened force, within a domestic situation, is enough.
The victim has a choice of two procedures to show domestic violence when seeking child custody. The victim may ask the court for an abuse prevention order. If the aggressor contests the request and the order is granted, that will start the presumption. If the request is not disputed, the order probably will not be enough to start the presumption. If the victim does not ask for an abuse prevention order, the custody hearing itself (either in divorce or otherwise) will include evidence of domestic violence, and the court will have to decide if domestic violence is proven.
It is possible, but difficult, to rebut the presumption. A successful challenge (assuming the court rules there was domestic violence) will usually require an expert custody evaluation and evidence that the incident was isolated and unlikely to happen again. For example, when the parents had a single violent incident between them, and the victim subsequently allowed the aggressor into the home to care for the children, the courts held that the presumption, if it applied, was overcome. On the other hand, a pattern of violence or a very bad incident will be very hard to rebut.
Washington does not recognize the presumption that a domestically violent parent should not receive custody. The court may, however, restrict parenting time or custodial rights in cases of a history of domestic violence or an assault or sexual assault causing serious injury or fear of serious injury. This still leaves a gray area as to how much of a restriction a court is likely to impose, and move evidence is required to impose a restriction than in Oregon.
If a history of violence or severe assault cannot be found, judges are given broad discretion in custody decisions, and the rule regarding domestic violence appears to be that only if the violence, or its aftermath, is likely to affect the children would it be a significant factor. This makes prediction of a child custody decision less certain than in Oregon, and even what appear to be extremely dangerous situations may not be enough to cause a ruling in favor of a victim of domestic violence.
In one of the leading cases, even though the father had physically abused one child and sexually abused another, he had subsequently bonded with the children and, in light of reports by a psychiatrist and a probation officer that the father was not likely to commit abuse again, a ruling granting custody to the father was upheld on appeal.
Conversely, in another case, the father raped the mother several years after their separation, and then took advantage of her subsequent flight to Arizona to move for temporary custody and restrict access to the child. The court ruled in the mother’s favor.
Between these extremes, it is unfortunately very difficult to analyze how a particular case may be decided.
A Few Practical Thoughts
In either Washington or Oregon, domestic violence charges are not taken lightly. I have encountered skeptical judges in some cases when seeking abuse prevention orders. If a judge thinks that a domestic violence claim is falsely raised to gain an advantage, it is likely to backfire. On the other hand, a reasonably well-supported claim is likely to be seen sympathetically.
In general, if you believe that domestic violence has occurred, it is worth consulting a lawyer to get advice as to whether a judge is likely to agree with the evidence and to discuss whether it is likely to be useful in a custody dispute.
If you are seriously afraid that the violence will reoccur, you should consult not only a lawyer but a domestic violence counselor to arrange for an escape strategy. The primary concern in that situation is to stop the violence; what it does to the child custody question should be dealt with as a consequence but not as a primary concern.