Laws are changing across the country – and even throughout the world. I see the definitions of domestic violence changing, broadening, almost by the day. But, in Virginia at least, as of the date of this writing, our statute(s) do not officially define or recognize coercive control as domestic violence.
That matters if you’re seeking a protective order.
It also matters if you and your ex share a child in common and we’re working towards a resolution in your child custody case.
Virginia is not a state that has a mandatory presumption of 50/50 custody, but – make no mistake – the courts still want to see both parents involved in the care and upbringing of a child to the greatest degree possible. And many judges in Virginia, based on my own personal experience, seem to believe that abuse of the mother is not the same as abuse of the child.
To put it as clearly as I can: just because he is abusive to you does not mean he is necessarily a danger to the child, at least in the court’s eyes.
He could be, of course. If his violence extended to the child, it’s possible he could be prevented from having contact with the child in a protective order. It’s possible, too, that his abuse of the child would factor into a custodial decision made in the underlying custody case.
But when the dad has not been outright physically abusive to the child, the court – at least in Virginia, at least as of today – does not automatically make the leap that dad isn’t safe to be around the kids.
I know, I know. It doesn’t make sense to me, either. But I’m not here to tell you what I believe, I’m here to help explain the law and the courts to you. I’m telling you that courts often draw a line between abuse of the mother and abuse of the child.
That is even more true when the abuse we’re describing might best be described as coercive control.
Coercive methods of abuse are often difficult to prove in court, even though the effects can be just as damaging as physical abuse. If you can’t prove it, you’ll have trouble getting a conviction, if we’re talking about a criminal case, or getting a protective order granted. If you can’t prove it with respect to just yourself, you’ll likely have an even harder time proving that your child’s father is a danger to the child, too.
Without evidence – without proof – no matter how much I believe you or your therapist or your doctor or even the police believe you, you may have a hard time convincing a court that denying or restricting parenting time is in the child’s best interests.
Unfortunately, my experience is that the court often does treat kids like guinea pigs, refusing to limit access to a parent unless and until something really bad (and provable) happens.
So, what can you do?
You might want to deny parenting time entirely, but that’s often risky – and could potentially result in you losing custody. If you’re the child’s only safe parent, it goes without saying that this is the opposite of an outcome we would wish for you (or for your child).
You should always talk to a local family law attorney with experience in your local court system – preferably with experience with your specific judge – to help you weigh the advantages and disadvantages of a certain course of action. If you don’t like the advice you receive, get a second opinion.
But be prepared to hear something you don’t want to hear: that your child may have to have parenting time with their unsafe parent.
At that point, it becomes a question of how it is structured and what specific safeguards you put into place to help your child navigate an impossible situation. How little parenting time can you give your child’s other parent and still have them say “yes” to the agreement you’re proposing? How can you structure it to be as successful as possible, both for your child and your child’s other parent?
I know, I know – you don’t care if he’s successful. But, if he’s not, the one who’ll carry the majority of the consequences will be your child. So, how can we mitigate the negative consequences of the parenting time?
In the meantime, of course you should continue to document any issues, any reluctance, and any situations that come up. Continue to raise them with your attorney. Maybe you can’t do anything right now, but – over time – it’s possible that his behavior will tip the scales in your favor. Remember that custody and visitation are often a marathon, rather than a sprint, so it may take time to gather the information and evidence you need to be successful in limiting dad’s parenting time.
A better use of your time today would be in figuring out how to structure your parenting plan so that your child is in the best possible position. Even if you can’t eliminate or severely restrict dad’s parenting time, how can you structure it to be as palatable as possible?
This isn’t advice that I like to give, but it’s better than the alternative. It’s better than denying parenting time or so severely restricting dad’s parenting time to the point that, once it gets in front of the judge, you lose custody entirely.
It’s an impossible situation to be in, but even impossible situations require that you strategize and do the best you can with what you have. I, for one, am hopeful that the law, in Virginia and throughout the world, will continue to evolve to reflect changing standards: that abusive parents are abusive, full stop, and that coercive control and post separation abuse are obvious forms of domestic violence even when no bruises are left behind.
For more information, to register to attend one of our upcoming divorce seminars, or to schedule a consultation, give our office a call at 757-425-5200.