Shockingly, family courts award joint or sole custody to fathers accused of domestic violence around 70 percent of the time. Alleged abusers are also frequently granted unsupervised parenting time, unless their child was directly targeted. And even when supervision is required, it’s often done by a family member in the privacy of the abuser’s home.
Over the past few decades, courts have increasingly favored joint legal custody, even when one parent has a history of violent abuse, and many states have “friendly parent” statutes that emphasize co-parenting and penalize parents who resist. Fathers accused of domestic violence are twice as likely to seek custody, using the courts as a tool for continued control over their victims.
A recent example of the outcome of these trends made national headlines: Rachel Pickrel-Hawkins was jailed by a Colorado family court judge for refusing to comply with a custody order that provided parenting time to her ex-husband, even though he had been criminally charged for sexually assaulting their daughters. While this set of facts was extreme, the judge’s unwitting commitment to shared custody did not surprise those who advocate to stem domestic violence.
Research shows that abusers frequently target children post-separation. The National Coalition Against Domestic Violence reports that children in homes with domestic violence are 15 times more likely to be physically abused or neglected. A 2019 study funded by the U.S. Department of Justice found that in 78 percent of cases where child abuse was later verified, the judge had initially dismissed the mother’s allegations.
Kayden Mancuso’s case in Philadelphia was particularly tragic. Despite credible testimony from her mother and therapist about her father’s dangerous behavior, the family court judge still ordered unsupervised parenting time for the father. Kayden died, the victim of what police called a murder-suicide on the part of her father. According to the Center for Judicial Excellence, in the last 15 years more than 900 children involved in contested custody cases have been murdered, most of them by abusive fathers. At least 58,000 children are currently living in dangerous homes as a result of custody orders.
But the judicial system, despite its shortcomings, is also where we find hope. We can prevent some of these unconscionable outcomes if we take what we know from the research and apply it on the front lines. To do this, we must make it a priority to fund comprehensive, mandatory and ongoing training on domestic violence for judges and court personnel who oversee family law cases. California is spearheading the way, enacting legislation in 2023 requiring judicial officers and referees who perform duties in domestic violence or child custody matters to participate in training that includes the subject of “coercive control.”
We must also dispense with the judicial presumption in favor of shared custody. A one-size-fits-all approach to custody is simply wrongheaded, especially where there is an uneven power dynamic between the parents. A legal presumption pressures victims to agree to whatever the abuser demands in lieu of going to trial. Why would a victim subject herself to a painful, disparaging battle in court when the burden to overcome shared custody is so high?
Third, we must give our custody statutes more teeth regarding domestic violence. Last year, California legislators added “psychologically damaging and coercive control” as admissible evidence in family court hearings on the question of “best interest of the child.” And as a result of Kayden Mancuso’s case, this year Pennsylvania passed Kayden’s Law, which requires courts to conduct a thorough evaluation of any history of abuse or violence and explicitly make findings regarding the safety of proposed parenting plans.
Finally, we must fund third-party supervision services that enable victims to safely comply with co-parenting plans. The federal government earmarked grants under the Violence Against Women Act in 2000 to create such programs, but there is still a shocking dearth. Here, New York state is taking the lead with pending legislation that would fund free supervision services at third-party agencies for families embroiled in family court.
In the 30 years since the passage of the Violence Against Women Act, the United States has made some progress in recognizing and criminalizing domestic violence. What we have not done is the much harder work of validating the existence of coercive and controlling behavior and addressing its ramifications, especially in the context of child custody. Domestic violence-related fatalities and injuries are a direct result of minimizing victims’ allegations and categorically favoring shared custody. Time will tell whether the very recent legal reforms will work, but we must not wait before implementing them nationwide. Children’s lives are on the line.
Dale Margolin Cecka is an assistant professor at Albany Law School and director of its Family Violence Litigation Clinic. She is a former Skadden Fellow at the Legal Aid Society of New York, where she advocated for pregnant and parenting teenagers and adolescents aging out of foster care.
Governing’s opinion columns reflect the views of their authors and not necessarily those of Governing’s editors or management.
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