Domestic Violence and Divorce/Child Custody

In family court, where divorce, child custody and parenting cases are decided, judges begin with the presumption that property is to be divided equitably and both parents should share custody and have equal parenting time.

But there are a number of factors that could alter this perception, and accusations of domestic violence are a major one.

At The Ansara Law Firm, our Fort Lauderdale domestic violence defense lawyers know a conviction isn’t necessary for a family law judge to weigh these allegations. Because there is no proof burden, parties to contentious divorce and child custody cases have long used these allegations to strong-arm an advantage.

Domestic violence allegations by a spouse or co-parent are taken very seriously, and do have a significant impact on divorce proceedings and future custody orders.

One of the reasons we see divorce, domestic violence and child custody so closely intertwined is that a relationship is often most volatile when it’s ending. Fuses can be short and there can be a lot of animosity among those involved.

Rebuttable Presumptions of Domestic Violence

Because domestic violence is considered a serious national problem, many states have enacted what are known as “domestic violence presumptions.” That is, there is a legal presumption that an abuser’s actions and future potential actions will be harmful to a child.

A presumption of domestic violence in your family law case, proven by a spouse or co-parent who shows a history of such behavior, could result in no access or very limited access to a child. It could also affect custody arrangements, divorce proceedings and other proceedings.

While these presumptions may be considered true, you do have the right to contest and prove them otherwise (i.e., they are rebuttable).

This state, like many others, governs child custody cases on the basis of what is in the best interest of the child.

In Florida, there is an explicit rebuttable presumption against custody to the batterer. It is codified in F.S. 61.13(2)(c)(2) . Essentially, there is a rebuttable presumption that it is NOT in the best interests of the child for a parent who has committed domestic violence to have custody.

If a parent is convicted of a third-degree felony or higher domestic violence offense, there will be a rebuttable presumption that joint custody is not in the best interest of the child. That puts the burden of proof on the allegedly abusive parent to prove shared custody is in the best interest of the child and would not be detrimental to the child.

Even if the judge doesn’t terminate parental rights or parenting time, the court may require any visitation be supervised through a pre-approved program. The accused parent will have to cover all costs of that program.

If there was no conviction or if the incident occurred many years ago, the judge should factor those elements into the final decision. But beware: The judge can still consider any evidence of domestic violence or child abuse in a custody or divorce case, regardless of whether there was a conviction.

This evidence could include:

  • Restraining orders (i.e., orders of protection)
  • Domestic violence arrests
  • Witness testimony
  • Electronic communications

Florida’s rebuttable presumption standard in domestic violence cases is somewhat more lax than in other states. In other jurisdictions, the state expressly bars awarding child custody to a parent found to have committed domestic violence or abuse on anybody.

Abuse in a No-Fault Divorce

Legally speaking, spousal abuse is not relevant to obtaining a divorce. That’s because Florida is a no-fault state when it comes to divorce, meaning people can seek a divorce for any time and for any reason, simply by citing “irreconcilable differences.”

A person’s ability to obtain a divorce will not be hindered by whether he or she can prove or disprove violence occurred within the relationship. However, proof of domestic violence can impact the ultimate findings in child custody (as noted above) and also when it comes to financial matters.

Property settlement in Florida divorces is based on a model of equitable distribution. This does not mean “equal distribution,” but rather what is considered fair. So in determining what is fair, the court may very well take into account factors such as a purported history of abuse.

A greater portion of property will likely be granted to a spouse who was found to have suffered emotional or physical abuse, particularly if his or her professional and personal development was hindered by the abuse.

If you have been arrested for domestic violence or related offense in South Florida, call The Ansara Law Firm today for your free initial consultation at (954) 761-4011.