If I fear for my safety, can I take my child and go?

Posted on Jan 11, 2021 by Katie Carter


Domestic violence is a very real issue in family law cases; it’s one we brush up against all the time. It was something that surprised me when I first started, because even in the most otherwise normal cases, there were undercurrents of domestic violence.

A friend of mine from law school is a prosecutor, too, and she tells me about her DV cases all the time. It’s a terrible reality.
Did you know that, for example, strangulation is a major indicator of future homicide? I don’t tell you that to scare you, especially if you’ve found yourself to be a victim of strangulation previously, but just to emphasize to you the importance of ensuring your own – and your children’s – long term safety and security.

While I’m sure you recognize that your safety is important – obviously – it’s a little bit easier said than done, right? Making a plan to extricate yourself, and doing it safely, is a challenge in a domestic violence situation.

Especially where there are children involved. And, not to mention, you’re a sane person, so it can be difficult to predict what an insane person will do when provoked. You leaving will almost certainly trigger him.

So, you have to tread carefully – and some of that is going above and beyond the assistance that a family law attorney can provide. You should have a plan in place for where to go and how to protect yourself. Ideally, you’d go to a hotel, or to an out of town friend or family’s place, at least temporarily, so that you’re not alone and/or he can’t find you. Don’t be afraid to contact police, too; a police report could help build the case that you’ll need later.

I don’t need to get into the psychology of a battered woman; besides, it’s more than a little bit outside the scope of my skills and abilities. But I can tell you that, all too often, abused women DON’T call the cops. Whether it’s embarrassment or a desire to protect their husbands, or even to protect themselves, that can often be problematic. The more information we have, the more evidence at our disposal, the better situated we’ll be for your protective order case, and, eventually, your divorce and/or custody case.

So, take pictures of any injuries. Go to the doctor or the hospital. Call the police. Press charges, if he commits a crime. And be involved with an experienced family law attorney throughout the process, who can help you manage things as your case progresses and – as is likely – intensifies.

But back to your question. If you fear for your safety, can you leave – and take your children?

Technically, you shouldn’t leave – it could count as desertion if you do. But that’s ridiculous. Compared to your personal safety, and the safety of your children, who cares about desertion? Of course, it’s a slight risk – under equitable distribution (which is how property is divided in Virginia), technically a person’s negative nonmonetary contributions to the marriage (like desertion is – but also like his cruelty, your apprehension of bodily hurt, which are also grounds for divorce are) can result in a distribution other than 50/50 being awarded.

Desertion is generally regarded as the weakest of the fault based grounds, and, anyway, your safety comes first. I’d never advise someone to put themselves in a dangerous physical situation because of the possibility of a complaint being filed on desertion.
You have fault based grounds of your own that you can use, and, anyway, your physical safety is of paramount importance.  Not only that, but I wouldn’t be doing my job if I didn’t give you a full picture of the advantages and disadvantages of any course of action.

You could also mitigate the possibility of this happening by filing for divorce on constructive desertion. That essentially means that he made the living conditions in the home so intolerable that you had to go. This is a little challenging, because you’ll have to file for divorce on the day that you leave, so it requires advance planning – but, still, it can be a good choice. You’ll want to talk to an attorney to get your ducks in a row before you go, if you intend to go this route.

And it’s also worth noting that the grounds for divorce are not mutually exclusive; by claiming constructive desertion, that doesn’t mean that you can’t file using cruelty or apprehension of bodily hurt as well. The grounds can all stack together. So, you’re not giving up anything.

Filing early – on constructive desertion, or using any other fault based grounds for which you qualify – can also get you into court early, to help establish temporary child support and spousal support so that, even if you’re away from home, you can support yourself and your children while the case is pending.

So, speaking of child support, what about the kids? Can you take them, too?

Well, yeah. I mean, technically, it’s a little complicated. But I think you’ll find that your argument that you’re terrified of him and fear for your safety would undermine your credibility in general and your bid for custody because of his abuse if you willingly LEAVE YOUR CHILDREN IN HIS CARE.

Right? I mean, that doesn’t make sense. If he’s so awful, if he’s so abusive, if you’re so terrified for your personal safety, why on earth would you leave your children there? Why would you leave them, and then argue that you need custody because he’s so abusive, when you LEFT THEM WITH HIM? Yeah, that doesn’t add up to a judge.

So, even though it might make him crazy mad, you take them. And you can file the day you leave, so the judge can help you determine temporary custody and child support at pendente lite, underscoring his argument that you’re just trying to keep the children away.

Even if dad gets some parenting time pursuant to a pendente lite order, which will depend on the facts involved, you can ask that a neutral third party do visitation exchanges, that your address be protected, etc., to ensure that he doesn’t have undue access to you.
Domestic violence is awful. These are some of the most mentally challenging cases any family law practitioner has to handle. But taking careful, well considered steps can help protect you and your children in the long run, and can help to ensure that you’re able to leave successfully.

For more information, or to schedule a confidential consultation with one of our attorneys, give our office a call at 757-425-5200.