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What custody arrangement is best if he is abusive2 Jan 2017

Child custody oftentimes is a challenging issue in divorce proceedings. With that noted, it becomes even more complicated when your husband has a history of some type of domestic abuse.

If you have elected to proceed with ending your marriage, you undoubtedly now have many questions about divorce law and the divorce process. On your list of questions likely is what is the best custody arrangement when your husband has a history of abuse.

Best Interests of the Child Standard

No matter the underlying issues in a child custody matter, the underlying standard applied by the court in making a custodial determination is a consideration of what is in the best interests of the child. The best interests of the child standard obliges the court to consider a variety of factors in making a decision regarding custody, as well a parenting time or visitation.

Albeit an important consideration, the fact that your husband has engaged in abusive conduct will not be the only factor taken into consideration by the court. In other words, you cannot assume that the court automatically will preclude your the father from having no custodial involvement because of an allegation of abuse.

Legal and Physical Custody

When you are contemplating the best custody arrangement in your case, you need to understand that there are two type of custody. Legal custody involves the right of a designated parent to make major life decisions on behalf of a child. Major life decisions include religion, education, and healthcare matters. Legal custody can be solely granted to one parent or shared by both.

Physical custody involves the where a child resides. As is the case with legal custody, physical custody can be sole or jointly shared by the parties.

Sole Physical Custody

In some, but not all, cases in which an allegation of abuse has been made, the offending parent can be precluded from physical custody. If your situation involves long-term, and significant abuse, you may want to attempt to obtain sole physical custody of your child.

Keep in mind that the court will consider factors like whether the abusive conduct was targeted directly towards you, or whether the child was an intended victim as well. You can make a valid argument that, even if your child was not an intended victim, he or she nonetheless must be considered a collateral victim of your husband’s abusive conduct.

The Question of Legal Custody

The issue of legal custody may be more problematic. While a powerful argument may be made that your husband should be precluded from physical custody, at least at this time, that does not in and of itself preclude him from sharing legal custody with you.

There is a strong preference for both parents to be involved in the decision making process when it comes to a child. There may be specific factors at play in your case at this time that may warrant to grant of sole legal custody to you. A prime example is if there is a restraining order in place as a result of the abusive conduct by your husband.

Parenting Time or Visitation

Merely because you may end up granted sole physical and legal custody does not mean your husband will be precluded from exercising parenting time or visitation with your child. In fact, the presumption will be that your spouse, even in many cases in which abuse is alleged, will be entitled to parenting time in some manner. This may begin with your husband exercising supervised visitation.

Supervision can be undertaken by a family member. It can also be provided by another third party designated by the court.

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