Ronald B. Adrine and Alexandria M. Ruden, Ohio Domestic Violence Law, Chapter 14. Domestic Violence and Custody and Visitation Issues, Section 14.14 (1999)


Joint custody, or "shared parenting" as it is now termed in Ohio, has enjoyed increasing prominence over the past ten years. Since 1991, there has been an increasing movement toward awarding shared parenting, even over the objection of one of the parents. While this concept fails to rise to the level of a presumption in favor of shared parenting, it comes remarkably close. A conviction by one of the parties for domestic violence [FN1] and a history of domestic violence [FN2] are factors that a court must consider before awarding shared parenting to one of the parties. [FN3]

The premise of shared parenting is that the parents can amicably resolve their differences or put them aside for the benefit of the children. In short, the parties must agree to agree. Unfortunately, where there is continuing violence by one party to the other, this underlying premise fails. [FN4] This is primarily because domestic violence is predicated on one party's use of power to control the other party and force that party to submit to his/her will. [FN5]

The National Council of Juvenile and Family Court Judges cautions that "Court Orders which force victims to share custody with their abusers place both victims and children in danger." [FN6] Additionally, the Council points out that "continued aggression and violence between divorced spouses with joint custody has the most adverse consequences for children of any custody option." [FN7] The Council relies on the studies of Judith Wallerstein set forth in her book, Second Chances: Men, Women and Children a Decade After Divorce. [FN8]

Additionally, House Congressional Resolution 172, adopted in 1990, warns that "joint custody guarantees the batterer continued access and control over the battered spouse's life through the children." [FN9] Against this background, many judicial authorities strongly urge against an award of shared parenting where domestic violence is an issue.

Q & A In cases where shared parenting is requested, what best-interest factors are courts required to consider in determining whether to award it?

In cases where shared parenting is requested by one of the parties, the court is required to consider all the best interest factors contained in both RC 3109.04(F)(1) and RC 3109.04(F)(2). A conviction or plea of guilty for domestic violence or another offense that caused physical harm to a member of the victim's household is among the factors that the court must evaluate before rendering its decision. [FN10] Besides that and other relevant factors, the court must consider "[a]ny history of, or potential for, child abuse, spouse abuse, other domestic violence, or parental kidnapping by either parent." [FN11] Thus, an exploration into that history must be made whether or not the parent was convicted of domestic violence.

The court could have considered a "history of or potential for spouse abuse" without a legislative mandate. What is significant is that Ohio's legislature established this mandate for courts to follow prior to awarding shared parenting to the parties.

Unlike sole custody and/or visitation, shared parenting encourages continued contact between the parents. Since shared parenting presupposes that the parents participate jointly in decision-making regarding the children, it creates a situation where the batterer is provided legally requiredopportunities to continue the abuse. Because the risks are greater for victims in shared parenting arrangements, victims must be permitted to present additional, and often undocumented, evidence of domestic violence. It is often easier to prove a "history of or potential for" spouse abuse or "other" domestic violence than it is to prevail at a criminal domestic violence trial.

Q & A What special problems does shared parenting pose for the domestic violence victim and/or the family law practitioner?

Where the court orders shared parenting or where the parties agree to a shared parenting plan, it may be more difficult to achieve the goal of allowing access to the children while protecting the abused parent from future harm. Since a shared parenting plan presupposes that the parents can resolve issues relative to their children amicably, there may appear to be no reason to restrict a parent's access to records, activities, or the victim's address.

Often the abusive parent desires shared parenting and files a plan in accordance with the statute. [FN12] Sometimes, the abusive parent may request shared parenting for no other reason than to allow him/her to continue to abuse the victim. If no counter proposal is filed, the court has the authority to adopt the abuser's shared parenting plan. The court may also order the abused parent to file a shared parenting plan. The court has the discretion to adopt the abuser's plan, over the objection of the abused parent, or to craft its own plan.

Victims of domestic violence may agree to shared parenting for many reasons. [FN13] They may be afraid that they will lose custody altogether if the case goes to trial. Sometimes, they only desire to avoid the stress of a trial. Sometimes, they may lack evidence of a conviction for domestic violence or documentation of a history of abuse [FN14] that may be necessary to prevail at trial.

Many commentators and researchers suggest that shared parenting not be awarded by the courts where there is a history of domestic violence. [FN15] Two psychologists proposed a risk assessment for determining whether to award shared parenting: "Before determining a shared parenting plan, evaluate the endangering parent for (1) ability to maintain impulse control; (2) capacity to empathize with the child; (3) ability to change problem-solving style; and (4) capacity to create and maintain a safe environment for the child." [FN16] An abuser who is not able to modify behavior suggests a high risk situation for the children. Where the relationship is highly conflicted, the safety of the child must become the paramount concern.

In cases where the victim wants to maintain a confidential address, it is important for the practitioner to present evidence of the history and pattern of violence within the marriage [FN17] before the parenting plan is crafted and becomes a court order. A pattern or history of domestic violence may be a convincing reason to restrict access to the victim, especially where it can be demonstrated that the abuse is likely to continue. It may also serve as a significant reason to deny an abuser's request for shared parenting. [FN18] A conviction for domestic violence may serve as a justification for either avoiding shared parenting altogether or, at the very least, limiting or restricting access. [FN19]

Where it can be demonstrated that the child is also the victim of domestic violence or could be harmed from continuing exposure to domestic violence, it is unlikely that a court will order shared parenting. If ordered, however, specific restrictions regarding access to records, day care facilities, and activities must be included in the court order.

The equal access provisions contained in RC 3109.051(H) to RC 3109.051(J) apply to all orders that allocate parental rights and responsibilities, including shared parenting plans. The victim should be cautioned that, absent specific written restrictions curtailing access, the other parent is automatically entitled to equal access.

Q & A Should shared parenting be considered by the courts when there is a history of domestic violence in the parents' relationship?

Many state courts have determined that a finding of a history of domestic violence is a significant factor against an award of joint custody. For example, in Ouellette v. Ouellette, [FN20] the Connecticut Court of Appeals held that joint custody is not a viable solution in a divorce agreement where the marriage had a history of violence, restraining orders, calls to the police, and loud arguments. In In re Marriage of Heilmann, [FN21] the Kansas Court of Appeals determined that, given the history of violence by the father and threats to take the mother's life, the trial court did not abuse its discretion in awarding sole custody to the mother despite father's request for joint custody.

These cases illustrate the importance of presenting to the court the history of domestic violence in a relationship. The common thread found in cases that have denied a request for joint custody is a history of violence against one of the parties. RC 3109.04(F)(2)(c) mirrors the legal reasoning set forth in these cases.

However, despite a history of violence, courts have awarded joint custody over the objection of one of the parties where the children express a preference for an abusive parent and the parties are able to agree on major decisions involving the children such as religion and education. [FN22]

Q & A Can a court issue a civil protection order against a parent even where the parties have shared parenting?

At least one court has addressed this particular issue. In Ellibee v. Ellibee, [FN23] the court granted the mother a protection order on behalf of the children against the father because he had administered severe spankings to his son during parenting time. The court determined that the granting of a ninety-day protection order was proper, especially given the intent of the state's domestic violence statute. This result was appropriate regardless of the fact that the parents had joint custody of the children. The court's only objective was to provide safety to the children while in their father's care.

FN1. RC 3109.04(F)(1)(h).

FN2. RC 3109.04(F)(2). See also In re Marriage of C.M.C., 87 Wash. App. 84, 940 P.2d 669 (1997) (holding that joint parental decision-making is statutorily precluded upon finding a history of acts of domestic violence by one parent, regardless of whether those acts caused grievous bodily harm or fear of such harm)

FN3. See also Text 14.5, Ohio's legislative response to domestic violence; Text 14.6, Ohio's judicial response to domestic violence.

FN4. See Joanne Schulman & Valerie Pitt, Second Thoughts on Joint Child Custody: Analysis of Legislation and Its Implications for Women and Children, 12 Golden Gate U. L. Rev. 538, 554-6 (1982); see also Daniel G. Saunders, Child Custody Decisions in Families Experiencing Woman Abuse, 39 Soc. Work 51, 55 (1994); Laura Crites & Donna Coker, What Therapists See That Judges May Miss: A Unique Guide to Custody Decisions When Spouse Abuse is Charged, 27 Judges' J. 8 (1988); Mildred D. Pagelow, Justice for Victims of Spouse Abuse in Divorce and Child Custody Cases, 8 Violence and Victims 1, 74 (1993).

FN5. See Joan Zorza, Protecting the Children in Custody Disputes When One Parent Abuses the Other, 29 Clearinghouse Rev. 1113 (1996); see also Linda R. Keenan, Domestic Violence and Custody Litigation: The Need for Statutory Reform, 13 Hofstra L. Rev. 407, 431 (1985).

FN6. National Council of Juvenile & Family Court Judges, Family Violence: Improving Court Practice 26 (1990).

FN7. National Council of Juvenile & Family Court Judges, Family Violence: Improving Court Practice 26(1990).

FN8. (1989).

FN9. H.R. Con. Res. 172, 101st Cong., 2d sess. (1990).

FN10. RC 3109.04(F)(1)(h).

FN11. RC 3109.04(F)(2)(c).

FN12. See RC 3109.04(D)(1)(a)(i) to RC 3109.04(D)(1)(a)(iii), RC 3109.04(G).

FN13. Lenore Walker & Glenace E. Edwall, Domestic Violence and Determination of Visitation and Custody in Divorce, in 127, 130-31 (D. Sonkin ed., 1987).

FN14. See Text 14.7, Presenting evidence of domestic violence in custody and visitation proceedings--Practice pointers.

FN15. See, e.g., Daniel G. Saunders, Child Custody Decisions in Families Experiencing Woman Abuse, 39 Soc. Work 51 (1994).

FN16. Carla Garrity & Mitchell A. Baris, Custody & Visitation: Is it Safe? 17 Fam. Advoc. 40, 43 (1995).

FN17. See RC 3109.04(F)(2).

FN18. RC 3109.04(F)(2)(c).

FN19. See RC 3109.04(F)(1)(h), RC 3109.04(F)(2).

FN20. Ouellette v. Ouellette, 1993 WL 360442, No. FA 92 50581 S (Conn. Super., 9-9-93); see also In re Marriage of C.M.C., 87 Wash. App. 84, 940 P.2d 669 (1997).

FN21. In re Marriage of Heilmann, 771 P.2d 948 (Kan. App. 1989); see also Caven v. Caven, 136 Wash.2d 800, 966 P.2d 1247 (1998) (holding that state statute prohibits joint decision-making upon a finding of a history of acts of domestic violence regardless of whether those acts caused grievous bodily harm); In re Marriage of C.M.C., 87 Wash. App. 84, 940 P.2d 669 (1997).

FN22. See, e.g., In re Marriage of Dempster, 809 S.W.2d 450 (Mo. App. 1991); Collinsworth v. O'Connell, 508 So.2d 744 (Fla. App. 1987); O.J.G. v. G.W.G., 770 S.W.2d 372 (Mo. App. 1989), cert. denied sub nom. Gregory v. Gregory, 493 U.S. 992, 110 S.Ct. 540, 107 L.Ed.2d 538 (1989).

FN23. Ellibee v. Ellibee, 121 Idaho 501, 826 P.2d 462 (1992).