Can you get sole custody after domestic violence?

If you've experienced domestic violence and are concerned about your child's safety, you may be wondering whether you can obtain sole custody.

If you're facing this difficult situation, it's helpful to understand how the family courts in England and Wales handle these cases so you know what to expect and how to protect your children.

What is sole custody?

Before we explore how domestic abuse impacts these cases, it's important to understand the terminology used in UK family law. Unlike in some countries, the term "custody" isn't actually used in England and Wales anymore. Instead, the courts focus on the following:

• Child arrangements orders which determine where a child will live (previously called "residence") and who they will spend time with (previously called "contact" or "access"). These orders set out the practical arrangements for a child's care.
• Parental responsibility refers to the legal rights, duties, powers, and responsibilities that parents have in relation to their children.

It's important to note that sole custody doesn't automatically mean the other parent has no contact with the child. Courts may still grant limited or supervised visitation if they believe it's in the child's best interests, even when sole custody is awarded.

How does domestic violence influence child arrangement orders?

Domestic violence is one of the most significant factors courts consider in child arrangement cases. Judges recognise that exposure to violence, whether a child witnesses it or experiences it directly, can cause serious psychological and emotional harm.

When domestic violence is present, the court may presume that the abusive parent poses a risk to the child's safety and wellbeing.

Courts understand that domestic violence isn't just about physical harm. It encompasses emotional abuse, threats, coercive control, intimidation, and patterns of behaviour designed to exert power over another person.

Even if the violence was directed at you rather than your child, courts recognise that children who witness domestic violence suffer trauma that affects their development and sense of security.

How do you prove abuse in custody proceedings?

Courts take allegations of domestic violence seriously. In cases of child arrangements proceedings, a judge may consider at the preliminary stage of proceedings whether the allegations of domestic abuse are disputed, the extent to which there would be any impact on the arrangements for the child concerned, and whether there should be a fact-finding hearing.

The judge will consider the allegations and decide whether or not they are proven.

The standard of proof is on the balance of probabilities. At the fact-finding hearing, the court will determine whether it is more likely than not that the alleged incident occurred. Where a finding of domestic abuse has been made, the court will need to consider, when making an order, whether they are satisfied that you or your children will be exposed to risk of harm.  

Before the hearing, the party asserting the allegations will need to summarise them in a schedule, and a witness statement will usually need to be submitted.

The court may be directed to consider any supplemental evidence, which can include:

• Police reports and arrest records documenting incidents of violence
• Protective orders or restraining orders that were granted against the other parent
• Medical records showing injuries consistent with abuse
• Photographs of injuries, property damage, or threatening messages
• Witness testimony from people who saw the abuse or its aftermath
• Text messages, emails, or voicemails containing threats or abusive language
• Documentation from domestic violence shelters or support services you accessed
• Testimony from professionals such as therapists, counsellors, or social workers who treated you or your child

Does domestic abuse have an impact on parental responsibility?

Domestic abuse doesn't automatically remove parental responsibility, but it may affect how that responsibility can be exercised. If a court determines that a parent has been abusive, it may restrict their ability to make decisions about the child's life, even if they retain parental responsibility on paper.

The court's focus remains on whether the parent can meet the child's needs and keep them safe. A parent who has perpetrated domestic abuse may need to demonstrate genuine change , perhaps through attending a domestic abuse perpetrator programme or undergoing therapy.

Court considerations for child safety

When deciding who a child should live with in cases involving domestic violence, courts prioritise the child's safety above all else. Judges will examine several factors, from the statutory welfare checklist, which includes:

• The child's wishes and feelings. The court will consider what the child wants, taking into account their age and understanding. Older children's views may carry more weight, but this may depend on the child's individual circumstances, with the court assessing their maturity and understanding of the situation.  However, children are never asked to choose between parents, and their wishes are just one factor among many.
• The child's physical, emotional, and educational needs. The court examines what each child needs to thrive - stable housing, emotional security, educational support, healthcare, and opportunities for activities and friendships. Different children have different needs depending on their age, temperament, and any special requirements.
• The likely effect of any change in circumstances. Courts recognise that stability matters enormously to children. They're reluctant to disrupt established arrangements unless there's a good reason. If a child has been living happily with one parent for some time, maintaining that stability is important.
• The child's age, sex, background, and relevant characteristics. This includes cultural and religious background, any disabilities or health conditions, and aspects of the child's identity that matter to their wellbeing.
• Any harm the child has suffered or is at risk of suffering. Courts take allegations of domestic abuse, neglect, substance misuse, or other risks very seriously. They must weigh the benefits of contact against any risks to the child's safety and wellbeing.
• How capable each parent is of meeting the child's needs. The court assesses each parent's ability to provide appropriate care, maintain routines, support education, meet emotional needs, and facilitate the child's relationship with the other parent.
• The range of powers available to the court. Courts consider whether making an order is better than making no order at all (the "no order principle"), and what type of order would best serve the child's interests.

Why should you seek legal advice?

Navigating child custody cases involving domestic abuse can feel overwhelming. However, the benefits of legal advice can ease the situation and provide clarity in searching for workable solutions for you and your children.

Domestic abuse support organisations such as Refuge, Women's Aid, and Respect (which works with male domestic violence victims) provide emotional support, practical advice, and can help you understand your legal options. They can also provide evidence for court through their records of your contact with them. You may be able to access the support of an independent domestic violence advisor (“IDVA”).

Remember, seeking help isn't a sign of weakness. It is a crucial step in protecting yourself and your children. The legal system has mechanisms in place to address domestic abuse, and with the right support and evidence, you can work toward arrangements that prioritise your children's safety and wellbeing.

Case studies

A mother's perspective

Sarah, a mother of two young children, endured years of physical and emotional abuse from her husband. After one particularly violent incident left her hospitalised, she fled with her children to a domestic violence shelter. She obtained an emergency protective order and filed for divorce and sole custody.

Sarah's solicitor helped her compile evidence, including medical records, photos of injuries, police reports from multiple incidents, and testimony from neighbours who had witnessed the abuse. Her therapist also provided testimony about the psychological impact on both Sarah and her children, who had developed anxiety and sleep disturbances.

The court appointed a guardian ad litem to represent the children's interests. After a thorough investigation, the guardian recommended sole custody to Sarah. Despite her husband's claims that he had changed and completed anger management classes, the judge found the pattern of abuse too severe and granted Sarah sole custody. Her husband was allowed supervised contact twice monthly.

A father's perspective

Michael's situation was equally challenging. For years, he and his daughter endured abuse from his wife, who struggled with substance abuse and violent outbursts. After his wife threatened him with a knife in front of their daughter, Michael filed for an emergency protective order and temporary custody.

Initially, Michael faced scepticism—male victims of domestic violence are sometimes not taken as seriously as female victims. However, his solicitor helped him present compelling evidence: recordings of threatening voicemails, testimony from his daughter's school counsellor, who had noticed behavioural changes, and documentation of his wife's refusal to seek treatment for her substance abuse.

The court ordered psychological evaluations for both parents. The court-appointed expert found that Michael provided a stable, nurturing environment while his wife posed a danger to their daughter. Michael was awarded sole custody, with his wife receiving supervised contact contingent on her completing substance abuse treatment and demonstrating sustained sobriety.

When and why the court might deny sole custody

While domestic violence is a strong factor favouring sole custody, courts don't automatically grant it in every case. There are situations where a judge might deny a sole custody request:

• Insufficient evidence: If you cannot provide credible evidence of abuse, the court may not find that domestic violence occurred. This doesn't mean the abuse didn't happen, but the legal standard requires proof.
• Allegations appear fabricated: Unfortunately, some parents make false allegations during contentious custody battles. If the court believes claims are exaggerated or invented to gain an advantage, it may deny sole custody and could even penalise the accusing parent.
• The abuse occurred long ago, and rehabilitation is evident: If the abusive behaviour happened years earlier, the abusive parent has completed extensive treatment, demonstrated genuine change, and poses no current threat, a court might grant joint custody with safeguards in place.
• Both parents have issues: If both parents have histories of violence, substance abuse, or other concerning behaviours, the court might determine that shared custody with restrictions, or even third-party custody, is most appropriate.
• The child's preference: In some cases, particularly with older teenagers, a child might express a strong desire to maintain a relationship with both parents despite past abuse. Courts must balance the child's wishes against safety concerns.

It's also worth noting that even when it is determined that a child should live with one parent, that decision is rarely permanent or unchangeable. The non-custodial parent can petition to modify custody arrangements if they can demonstrate significant changes in circumstances and prove they no longer pose a risk.