Considering the (lack of) criminal consequences of domestic violence in family court: three potential solutions for practitioners and policymakers.

Trigger Warning: Domestic violence and discussion of domestic and child abuse

Disclaimer: It is important to note that this study and the data presented within it focuses exclusively on cisgender women. It does not purport to reflect any statistic or study done on this issue as it is faced by transgender women and female-presenting persons facing this issue in the criminal and civil legal system.

The Problem

Allegations of child abuse and domestic violence are prevalent in divorce, civil protection, and child custody cases — and criminal cases can have reciprocal implications. Regardless, criminal law practitioners do not always consider the civil consequences of their client’s criminal charges in family law matters. Individuals can face challenges navigating both the civil and criminal systems simultaneously, which may lead to conflicting orders. Further, because most states do not have a civil right to counsel in family law cases, indigent people often go unrepresented in family law proceedings and are unaware of the resources available for victims of crime. In fact, there is little cross-over between criminal and family law systems, which means indigent victims of crime, especially children, are underserved and can fall through the cracks—further entrenching the cycle of domestic violence.

Family courts are not equipped to support and investigate domestic violence, nor is it their job. Data and experience show that domestic violence and child abuse allegations actually work against accusers in custody and divorce determinations because family court judges exhibit extreme skepticism of these allegations. This means that if a victim tells the truth about their trauma, it is more likely that abusers end up with primary custody of children they are abusing. In the family law system, victims of domestic violence are often denigrated, humiliated, and traumatized. This makes them less likely to report their experiences to law enforcement so that the criminal legal system can investigate and hold abusers accountable. This phenomenon also has a wildly disproportionate impact on women.

The potential that family law can impact criminal proceedings is under-studied. Without access to the criminal legal system, victims miss out on vital resources to help them heal from their experiences. At the same time, it is important to refrain from over-criminalizing families, which could disincentivize individuals from seeking a divorce, restraining order, or child custody arrangement.

Three Potential Solutions

There are three potential solutions to address the gap in support for victims of domestic abuse crimes in family court: a systemic program, supportive resource, and procedural change.

1. Systemic: Family Justice Centers

While addressing the root causes of crime is the best way for society to prevent domestic violence, Family Justice Centers provide systemic programs that can enhance resources for victims by providing a multidisciplinary response to violence while situating these resources in a safe, welcoming environment. Family Justice Centers — which typically resemble a cross between a legal aid clinic and domestic violence shelter — attempt to provide a holistic response to sexual and domestic violence that promotes familial healing through medical and mental health treatment, civil advocacy, and public assistance. These centers ordinarily work with prosecutor’s offices and law enforcement, but not family courts. If family courts helped victims access these centers by closely partnering with and promoting them, victims of crime could access resources that may improve their legal representation, respond to their basic needs, and prevent future violence.

2. Supportive: Independent Domestic Abuse Advisors (IDVAs)

In the United States, guardians ad litem (GALs) are typically appointed in family law cases in which there are allegations of abuse against children. However, these resources are largely unavailable to adult victims of abuse who can be required to report a crime to access victim services. To add insult to injury, parent’s usually split the cost of GALs, meaning that a victim of violence can be forced to pay an extra premium if they are honest about the abuse their children face.

By contrast, in England and Wales, the national government created a Domestic Abuse Commissioner required to work with experts to develop a strategic plan to reduce family violence. After a 2021 report finding that 89% of domestic violence victims do not receive support while in family courts, the Commissioner recommended making Independent Domestic Abuse Advisors (IDVAs) more central to the family court system. IDVAs operate much like victim/witness representatives but can be involved in family court. Integrating a similar system in the United States could help ensure victims of crime receive the services they need directly within the domestic relations courtroom without requiring them to involve law enforcement.

3. Procedural: Mandatory and Waivable Hearings

There are also procedural options that could improve the family court’s relationship with domestic violence. In the family law context, child custody and equitable distribution statutes could reduce the bias against reporting abuse. However, the courts could go further to ensure the state supports victims of crime. One possible solution is, for cases where there is an allegation of certain types of crimes such as sex abuse or serious injury, (1) if the victim is a child, there should be a mandatory hearing regarding the allegations so the Court can determine if the case needs to be referred to the State and (2) if the victim is an adult, there should be a waivable hearing regarding the allegations so the Court can do the same. This procedural change would require courts to take allegations seriously rather than dismissing them as obstacles to shared custody plans. It would also improve the likelihood that family law practitioners work with criminal law attorneys — or study criminal law themselves — to understand the criminal implications of their client’s actions and allegations. This change could be integrated into existing mechanisms for appointing a guardian ad litem, ensuring that the state is also apprised of serious allegations rather than relying on underpaid, overworked, and sometimes ineffective GALs or CASAs (Court Appointed Special Advocates) to make those determinations. 

What Can You Do?

Practitioners who can directly effect change, such as judges, prosecutors, and policymakers, should explore options to improve resources for victims of crime in the family court system while ensuring they do not over-criminalize families. Addressing domestic violence requires a comprehensive response from multiple stakeholders — and family courts are an under-explored avenue for partnership to address this issue.