Updated: Oct 30, 2018
Situations involving domestic violence, allegations of child maltreatment and child custody, can be complex. There are many factors to consider, including prioritizing child safety over parental rights if parents are abusive.
Family courts (also known as divorce, domestic, probate) are state-based and there is variation across states regarding how cases are handled. Nevertheless, NPEIV’s public policy action team has identified three key areas of focus that raise many questions that affect all states. We are particularly concerned about the rights of children because they generally lack individual standing to be heard. We believe the status of children should be expanded to ensure protection of their rights to safety.
Children are entitled to many of the same Constitutional rights granted to adults, including, but not limited to, freedom from cruel/unusual punishment, involuntary servitude, governmental restraints, and the right to bodily integrity.
NPEIV's Public Policy Action Team has identified the following public policy statements:
1. To end interpersonal violence across the lifespan, children must be safe in their homes. Research demonstrates that long term harm is done to children who live with and/or witness domestic violence and sexual abuse. The outcomes include physical injuries, behavioral disorders, traumatic reactions, and often lifetime illnesses, along with a reduced life expectancy. NPEIV is committed to federal legislation to ensure that child safety from violence and abuse is the first and highest priority in all state and federal court determinations.
2. An unknown number of children are placed in the sole or joint custody of alleged domestic violence perpetrators or child abusers. NPEIV supports the enactment of federal legislation to establish an effective oversight mechanism, such as a Violence Against Children division within the Department of Justice, in collaboration with the Department of Health and Human Service’s Administration of Children and Families, to review high profile cases, in which children have been placed with alleged perpetrators of violent or abuse crimes, as well as statues and policies that may lead to children being placed in situations that have potential risks. The purpose of such an oversight entity would be to assure Federal monies are not spent increasing harm to children. A centralized entity would serve as a repository of longitudinal data on incidence and prevalence rates among children who are ordered to live with alleged perpetrators. This oversight entity would have responsibility for establishing best practices to ensure the prioritization of a thorough law enforcement and child protective services investigations, and child safety during all investigations and determinations related to children.
3. The third issue is federal funding that negatively impacts child safety. For example, child support legislation has resulted in abusers seeking and gaining sole or joint custody to avoid paying child support. Federal grants and legislation should be review to make sure that federal funding priorities ensure child safety and due process. Grants can offer incentives to states to disconnect child support from parenting time, to presume children of a certain age will be allowed to testify in legal proceedings in the absence of clear and convincing proof that testifying will cause them harm, to utilize the civil preponderance of evidence standard of proof to ensure child safety, and to lower the standard of judicial review in cases where allegations of abuse are made such that the appellate court reviews the matter "de novo" or under a "plain error" rule rather than "abuse of discretion".
Given that the mission of the NPEIV is to focus on the impact of trauma across the life-span, we believe that the focus of child custody dispute cases should integrate the concepts of trauma- informed practices to address decisions that impact children's safety and development. Models should be reviewed in various states that represent best practice approaches to family court procedures and decision-making, and these findings should be used in judicial training and public awareness approached.