Volume 6, Fall 2000

Know Your Rights:
Domestic Violence and Child Custody

“The domestic violence counselor told me that they would take my children away if I went back to live with my boyfriend....” - victim’s account, Indian Health Council, Peace Between Partners Program.

According to the U.S. Department of Justice, the rate of violent victimization in Indian Country far exceeds that experienced by other ethnic or racial groups. In fact, it is two times higher than the national average. American Indians and Crimes, U.S. Dept. Of Justice, Bureau of Justice Statistics (Feb. 1999).

Indian women experience violent crime, including domestic violence, at rates much higher than the national average. In addition, according to nationwide statistics, approximately 45% of victims live with young children. This is down from over 50% a few years ago. Considering these statistics, it is easy to conclude that there is a disproportionately high percentage of Indian children living in violent homes.

Victims (in this article the word “victim” refers to a person who has been subjected to physical and/or emotional abuse by a partner) of domestic violence are at risk of having their children taken into protective custody by a county Department of Social Services and declared dependents of the court. If a child is exposed to domestic violence, the courts can find that the parents, even the victimized parent, have committed child abuse. The exposure can involve no more than the child being present in the home during an incident of domestic violence. This is known as “secondary abuse.” In a California court case known as In re Heather A., a court found that two children were exposed to domestic violence by virtue of being in the same home as their mother when she was physically abused by her boyfriend, even though the children were in another part of the house and did not actually see the abuse. These children were considered victims of secondary abuse, removed from the home and made dependents of the court. Simply put, there is no requirement that children themselves be physically abused for the children to be removed from their home.

Decrease chances of removal

Leaving an abusive relationship is the most important step a parent can take to assure that children are not removed from their home. Leaving an abusive relationship may be a long process. In the meantime the parent can consider some other alternatives to help protect their children, including the following:

Have the children stay with a relative, friend or other care provider until such time as the victim and/or batterer can get help to stop the domestic violence. The parent wishing to further protect the children should designate the care provider as an Indian Custodian and put the designation in writing.
Get help from the Tribal health clinic or Tribal domestic violence prevention program. Victims need to use the resources that Tribes have to offer. This is especially important if there are resources, like respite care, which can provide temporary care for children.

What if the children are removed?

If the children are removed, and a dependency case is initiated, the victim is entitled to a court-appointed attorney if the victim cannot otherwise afford legal counsel.

The victim must be certain to immediately inform the attorney that the victim is an Indian person and that the Indian Child Welfare Act may apply.

The victim can also request that her or his Tribe(s) become involved in the case.

Finally, if the victim has not yet done so, the victim should inform the attorney about the incidents of domestic violence.

Hope for victims seeking custody

Often batterers will continue to abuse their victims once they have left the abusive relationship by trying to get custody of children through the family court. However, in part as fallout from the O.J. Simpson case, California passed a law in 1999 that changes the rules for custody decisions in family court when there has been domestic violence. If the court finds that a party seeking custody of a child has perpetrated domestic violence against the other party seeking custody or against the child or the child’s siblings within the previous five years, there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to that person is detrimental to the best interest of the child. CA Family Code 3044(a).

This means that in a custody case between the parents, the court will assume it is not in the child’s best interest to be placed with the batterer and it is up to the batterer to prove otherwise.

Know Your Rights: Domestic Violence and Child Custody

Know Your Rights:
Domestic Violence and Child Custody