Violence is a frequent and difficult topic in proceedings concerning custody and contact rights. Those affected are often traumatized and burdened. Courts, experts, family court assistance and victim protection institutions are challenged.. Not only physical, but also psychological violence can have serious consequences for those affected, and witnessing violence is also dramatic for children.. Since 2024, there has been a handout from the Ministry of Justice, which is primarily aimed at family court judges, on how to deal with violence in proceedings relating to custody and contact rights.
Forms of violence
There are different forms of violence. It is well-established and generally known that physical violence by a parent against children is in any case a threat to the child’s wellbeing. While this is of course correct, it sometimes does not seem to be sufficiently in focus that violence witnessed by children against a close caregiver is also a form of violence against children. It is even more difficult to seek understanding if the child has not seen one parent physically abusing the other but has witnessed psychological violence against a parent.
According to the Ministry of Justice’s handout, psychological violence includes all actions and statements by parents towards or in front of the child that cause the child to be afraid and that significantly impair the child’s physical and/or psychological development. Putting down and devaluing the other parent in front of the child is also explicitly qualified as psychological violence against children in the handout.
Court proceedings for families with violence problems
Even where there is violence in the family, issues such as custody and contact rights must be discussed. In such proceedings, however, the same rules cannot apply as in proceedings where there are conflicts between parents but no violence. Many family court judges are already sensitized. However, it is sometimes the case that victims of (psychological) violence are not taken seriously in court, that their experiences are minimized and that they have to learn once again that it is hopeless to rebel against the supposedly overpowering partner.
What are the challenges in guardianship proceedings in cases of domestic violence?
Especially in family law, courts try to promote agreements. It is generally assumed that it is in the best interests of the child if there is contact with both parents, the parents come to an agreement and the focus is on the future rather than the past. That makes generally sense. When people agree on something, everyone is happy and the children are better off too. However, this is different in the case of violent dynamics. If an agreement is pushed, this sometimes leads to solutions in which victims of violence simply agree to everything in order to escape the situation “just to make it stop”. However, this may not be the solution that is in the best interests of the child.
Psychological violence is difficult to prove. It is not possible to submit a hospital report on mental cruelty, as one can do with a broken arm. It is essential that family court judges recognize different forms of violence in a family. Only then can protective measures be taken. There are situations where a person makes a dazzling appearance in court. Perhaps this person has an impressive professional career, expresses themselves in a chosen manner and appears friendly and charming in court, while behind closed doors their own family is being bullied.
In some cases, people and especially children who have experienced psychological violence for a long time are also unable to describe it rationally, chronologically correctly and coherently in a court hearing. They are sometimes perceived as unstable and stressed. Those affected often find it difficult to describe the humiliations or insults they have experienced or to weigh up what is “relevant” in the legal context .
Conclusion
The handout from the Ministry of Justice is an important step. It clearly states that witnessed violence also prevents children from developing healthily and must therefore be assessed as a threat to the child’s welfare. The handout points out that not every act of violence by one parent towards the other parent justifies a restriction or withdrawal of custody or the right of contact, but that every form of violence must be recognized and taken seriously.
However, it is up to the respective judges to decide how intensively they want to follow the handout. There is no doubt that there are many very committed judges in family law. However, it would be desirable to make the handout even better known among judges. Likewise, especially on the subject of violence in families, there could be even closer, interdisciplinary cooperation with child and youth welfare services, but also with violence protection facilities, and standards could be developed for the exchange of information on recognizing and dealing with all types of violence.
The right of contact between parents and child is a fundamental right. That is correct. Children need both parents. That is also correct. However, more sensitivity is needed for those affected and especially for children in court in proceedings where the right of contact is disputed and there is violence in the family. Time and again, when it comes to contact with the violent parent, the court says “we have to look to the future”. Basically, yes.
Looking to the future is a good thing if the past was not good. However, when it comes to violence in the family, general principles should no longer apply. Immediately demanding that parents find new ways of working together at parent level, cannot always be the credo. Suggesting to a parent who has experienced violence to look to the future, hope for the best and maintain a “basis for communication and cooperation” with the other violent parent is sometimes simply unreasonable. In cases of violence, the protection of the children and those affected must have top priority.
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