Protective Orders and Child Custody

Last updated August 2012

One of domestic violence victims’ primary concerns in deciding whether to apply for a protective order is that their children will be taken from them. This fear deters victims from seeking protection from the government. The fear is a realistic one, either because domestic violence laws do not provide for temporary custody to go to the non-violent parent or because children may be removed from the home if the violence comes to the attention of child protective services. In Croatia, for example, a battered woman may be imprisoned under the Criminal Code if she allows her children to witness an assault against her.[i] The family code also allows for removal of the children who witness domestic violence.[ii]

 
By contrast, the Bulgarian domestic violence law places temporary custody with the non-violent parent as a term of a protective order. That law provides for:
temporarily relocating the residence of the child with the parent who is the victim or with the parent who has not carried out the violent act at stake . . . provided that this is not inconsistent with the best interests of the child.[iii]
 
Despite the existence of this law, the European Court of Human Rights (ECHR) found Bulgaria to be in violation of the Council of Europe’s Convention for the Protection of Human Rights and Fundamental Freedoms in the custody matter of Bevacqua and S v. Bulgaria.[iv]  In Bevacqua the victim sought an interim order from the Bulgarian court granting her temporary custody of her son pending a divorce from her abusive spouse. According to the ECHR, the Bulgarian court’s delay in issuing the interim order resulted in the three-year-old child being adversely affected by having to witness his father’s violent attacks on his mother, and his father’s obstruction of his mother’s access to the child.
 
Although the laws of some countries, such as Georgia,[v] do not explicitly provide for temporary custody to go the non-violent parent, a court could interpret them in that way. The protective order laws of some other countries, including Azerbaijan,[vi] Kyrgyzstan[vii] and Moldova,[viii] provide for limiting the perpetrator’s communications with his children without specifically addressing temporary custody.
 
Recommendations:
  • Domestic violence laws should require that protective orders place temporary custody with the non-violent parent. Doing so will eliminate a deterrent to victims from seeking protective orders, avoid further trauma to children, and reinforce the parent-child bond.
  • Protective orders should facilitate victims’ ability to continue to care for their children and provide stability to the household. These terms should include allowing victims and their children to remain in the family home regardless of ownership, and requiring perpetrators to pay child support.

[i] See Criminal Code of Croatia (1997 amended 2008), Art. 213, http://www.vsrh.hr/CustomPages/Static/HRV/Files/Legislation__Criminal-Code.pdf (1997 amended 2003).
[ii] Croatia Family Act (2007), Art. 111, 114 (2)(1), 115.
[iii] Protection Against Domestic Violence Act, S. 5(1)(4), http://www.legislationline.org/documents/id/15572 .
[iv] Bevacqua and S. v. Bulgaria, No. 71127/01, ECHR 2008,
[v] Law of Georgia on Elimination of Domestic Violence, Protection of and Support to Its Victims (as amended, May 2006) at Art. 14, http://www.legislationline.org/documents/id/16680.
[vi] The Law of the Republic of Azerbaijan on Prevention of Domestic Violence (22 June 2010) at § 10.3.1, http://www.legislationline.org/documents/id/16419.
[vii] Kyrgyz Republic Law on Social-Legal Protection Against Domestic Violence (31 January 2003) at Art. 27, http://www.legislationline.org/documents/id/16450.
[viii] Law on Preventing and Combating Family Violence (1 March 2007) at Art. 15 (1)(i), http://www.legislationline.org/documents/id/16368.