Yes, absolutely. If there is domestic violence in your family, the Alec and Lydia Act presumes that giving legal decision making or parenting time to the abusive parent is contrary to your child’s best interests. That is the starting point now. Your child wanting to visit with the abusive parent does not mean it is safe for them to do so. In fact, under the Alec and Lydia Act, the child wanting contact with the abuser is not a factor that the court considers. The abusive parent’s access to the child is contrary to their best interests.
Oftentimes the abuser uses their child’s love as a strategy to gain access to them, in spite of the domestic violence. That is no longer a factor to override the safety concerns. Prior to the Alec and Lydia Act, the victim had to prove that the kids were in danger because of the domestic violence by witnessing it or having it directed at them. Sometimes that was an impossible task for the victim to prove. Now the court is no longer allowed to weigh those factors in favor of the abuser. It is assumed that the child is in danger with the abusive parent.
What Three Arguments Are Now Irrelevant?
Courts must disregard these three factors when they analyze whether the abuser has rebutted the presumption.
- That your child was not present when the violence happened.
- That your child did not know it happened.
- That your child wants to see them or wants more time with them.
For a long time there was a comfortable assumption that a child who did not witness the abuse was not harmed by it. That is false and the legislature rejected it outright.
The third one deserves its own paragraph, because it seems logical at first glance. Abusive parents often work hard at being the fun parent with gifts, lack of rules, junk food, unlimited screen time, and undermining the abused parent at every turn. Abusers are often masterful at cultivating a child's affection in a way that is performative, not loving and healthy. This is the same abusive parent who may have slapped the child or slapped the victim parent in front of the child. So, being a pretend great parent to gain favor and reduce their accountability is just a game. That’s why the legislature told the court to reject that notion.
Does the Court Have to Make Written Findings?
Yes, even for temporary orders. Whenever domestic violence is alleged, the court must put its findings in writing before entering any order about legal decision making or parenting time. That applies at a temporary orders hearing and at trial. In the past, judges often did not write findings at temporary orders at all.
Those findings have to be thorough. The court has to describe the evidence that supported or rejected a finding of domestic violence. It has to explain why the abuser did or did not rebut the presumption, factor by factor. And it has to put limitations on legal decision making and parenting time rights if the presumption is not rebutted and explain why the limitations it chose are in your child's best interests.
Why That Matters to You
A judge cannot simply announce a result. If the order states a conclusion without explaining the analysis behind it, that is a basis to challenge the order on appeal. This is why the written findings matter so much. They are the record of what the court considered and what it rejected. If the victim parent ever has to go to the Court of Appeals, those findings are what you argue. If the findings are insufficient, you may have a viable appeal.
The Alec and Lydia Act gives the courts a blueprint with written requirements in domestic violence cases. It also holds the abuser accountable. It was written to protect children and the victim parent. There is hope and you are not alone. We can help.