Even though I am well and truly sick and tired of “groundbreaking” family law legislation being named after kids who were murdered in contested custody cases, the Alec and Lydia Act – recently passed in the state of Arizona – is, I hope, the beginning of a new era.
Though I am not licensed in Arizona, I still think the legislation is worth mentioning, even in Virginia.
What happened to Alec and Lydia?
Alec (7) and Lydia (6) were murdered by their dad during court ordered unsupervised parenting time in May of 2024. Even despite a documented history of domestic violence, the Arizona courts awarded – according to the state’s presumption – equal parenting time.
Their mother, Hope Hooton, later became an advocate, pushing for reform – and, specifically, working towards this act.
What does the law do?
Don’t take my word for it. You can read the full text of the law here.
It does a couple of key things:
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It makes family violence a controlling factor in custody decisions, instead of just one of many that the judge must consider.
Arizona is a state that has a presumption for 50/50 custody. (Virginia, for the record, is not.) This law creates a mandatory legal presumption against awarded custody to a parent who has committed domestic violence.
It doesn’t matter that the child was not present, that the child was unaware of the violence, or that the child’s preference would be to spend time with the abusive parent. The presence of domestic violence at all is controlling; the presumption is on the alleged abuser to rebut, rather than placing the burden of proving that abuse DOES exist on the victim.
When the abusive parent can’t successfully rebut that presumption – meaning, he can’t show that the abuse did not take place – it impacts both physical and legal custody. (Remember, legal custody is the right to make certain types of decisions on behalf of the child; physical custody is about where they spend the majority of their time.)
In Virginia, acts of family violence are just one factor that the court must consider in a “best interests” analysis, but it doesn’t technically have any more weight than any other factor. This can (and does) result in children being ordered to spend time with parents who have abused them, even when there’s evidence to show that the abuse really is happening.
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It doesn’t require that the victim’s evidence or testimony be corroborated by a third party, like a doctor, therapist, or police officer.
Corroboration just means having someone else testify in support of your allegations. A police officer could come to testify about a domestic disturbance he responded to and the corresponding police report he filed. A doctor could testify specifically about wounds he observed and what was documented after an office or hospital visit. These are all examples of corroborating witnesses offering corroborating testimony and/or evidence.
It’s hard to have witnesses to domestic violence, so many who have suffered privately struggle to prove it publicly. Having someone else testify – and testify well – is a difficult thing to do.
This does not mean that no evidence will be required, or that someone simply saying, “I was abused,” will be enough to take kids away from their other parent. In all likelihood, these will be expensive and difficult cases to litigate.
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It expands the legal definition of domestic violence to include coercive control.
This is a biggie, too, because not all domestic violence leaves bruises. Though I’m sure this one would be difficult to prove, even acknowledging that abuse isn’t only physical is a tremendous step in the right direction for women who’ve experienced coercive control and post separation abuse, especially as it escalates after separation or divorce.
You can read more about coercive control here, but is is a pattern of threatening, intimidating, and humiliating behavior designed to demean, scare, and hurt a person. This law designates coercive control as domestic violence the same as any act of physical abuse.
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It narrowly defines “mutual abuse.”
Was he abusive, or were they just toxic together? We all heard about mutual abuse when the Johnny Depp/Amber Heard case took center stage here in Virginia – and, for the record, I am solidly on team Amber Heard.
Before, in Arizona, if both parents were abusive, the rebuttable presumption didn’t apply. Now, courts can’t describe violence as mutual abuse unless specific circumstances are met. (Because, after all, a cornered dog may eventually bite, but that doesn’t make it an inherently aggressive dog.)
The new law provides a specific set of circumstances so that judges have criteria to use to determine whether the abuse is “mutual,” or not – like whether both parties have the same intention and are capable of the same level of damage.
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Prior evidence related to DV can be used when custody is modified, too!
In Virginia, anything prior to entry of the last order is inadmissible. So, if you reach a consent agreement that doesn’t address domestic violence now, you can’t bring it up later.
In Arizona now, the same standards apply on modification as on initial determination, meaning that the domestic violence doesn’t just disappear because an order was entered. In fact, the law says the court MUST allow this kind of evidence to be introduced – a refreshing and necessary change.
How does Virginia decide custody and visitation? What weight does it give to domestic violence allegations?
Virginia still uses the best interests of the child factors and acts of family violence are just one of those factors. In my own practice, I have found that allegations of domestic violence are often ignored or diminished and victims are required to provide proof.
Virginia does not mandate 50/50 custody, though; instead, the court is required to consider all forms of physical custody (primary, shared and split) equally in making a decision.
There are some changes in the law that will become effective on July 1, but nothing like this legislation. I love that, after July 1, a “divorce from bed and board” can be filed immediately after separation. For victims of domestic violence, this is particularly good because it allows them access to the court and other judicial remedies more quickly than before, especially if they don’t want to (or can’t) allege fault-based grounds for divorce.
I’m not licensed in Arizona, so if you’re looking for Arizona-specific information, I definitely recommend that you look for an attorney who practices there. I only summarize these changes for informational purposes and to show what’s possible in cases where domestic violence is an issue. I do hope that this is the beginning of a new and more protective era, but – like any new law – we’ll have to wait and see what these cases look like in practice.
It’s interesting to see what other courts are doing, even though it’s heartbreaking to see more legislation coming out of the murders of real children. Virginia, for the record, has also not adopted Kayden’s Law or any iteration thereof. I love to see positive changes, but I hate what it takes to convince lawmakers to take children’s safety seriously.
For more information, to schedule a consultation, or to learn more about custody in Virginia, give our office a call or request a copy of our free custody book.