Protecting Your Children in a Divorce
Divorce is a difficult process for any adult, let alone a child, who does not have the necessary psychological or emotional development to fully understand what is happening. Divorcing parents often do everything they can to shield their child from the worst of the fallout that comes from these situations, and this effort is usually a joint endeavor to ensure the child is receiving the same consistent message. However, there are circumstances where one parent presents a danger to the other spouse and/or child due to issues like drug or alcohol abuse or domestic violence, and trying to keep the child safe and protected becomes the top priority. This is especially important if there is a history or evidence to suggest the parent is unstable when presented with situations he/she cannot control. Traditionally, both parents are entitled to equal rights and access over a child, but this paradigm shifts if a parent poses a threat and offers a parent access to legal procedures designed to protect the child from harm. The two primary legal options a parent can pursue during a divorce to protect a child from a potentially dangerous parent will be explored below.
Best Interests of the Child
When a couple who shares a child decides to divorce, the largest issue is commonly who will have primary responsibility for the child. Florida has two types of child custody – physical and legal. Physical custody is the actual time the child lives with each parent, and legal custody concerns which parent has legal authority to make decisions on child’s behalf on issues related to education, medical care, and child care. While parents usually have the right to exercise both types of custodies, as the law defaults to shared parental responsibility, a court always has the option to limit or deny a parent’s right to either type of custody. When a court assesses which custody arrangement will be appropriate, the judge looks at best interests of the child to determine if shared parental responsibility would be harmful for the child. The best interests of the child are based on a number of factors the court must weigh, and two of these factors specifically relate to abusive situations. These are:
- evidence of domestic violence, child abuse, child abandonment, or child neglect; and
- evidence that either parent intentionally provided false information to the court about the existence of a prior or pending suit related to domestic violence, sexual violence, child abuse, child abandonment, or child neglect.
If convincing evidence of abuse and/or violence is presented to the court, it is almost certain the dangerous parent will have supervised visitation with the child at the very least, and could have access to the child completely denied.
The second legal mechanism a parent can use to protect a child is to request a domestic violence protective order. If there is history of actual or threatened violence toward a spouse, blood relative, or other household member, it is possible to ask a court for an order that tells the abuser to stay away and prohibits contact. The goal of the order is to prevent future violence, and each protective order is valid for up to one year, subject to renewal. In addition to prohibiting contact, protective orders usually give exclusive use of the family dwelling to the petitioner and can also include parenting time provisions that limit or exclude the abusive parent from seeing the child.
If you are going through a divorce, especially one involving violence or abuse, it is important to work with an experienced family law attorney to ensure you and your family receives all the protection afforded under the law. The Tampa law firm of Bubley & Bubley, P.A. has attorneys with the necessary experience to make sure your interests are heard by the court. Contact us to schedule a consultation.