For decades, across the country, advocates against domestic violence lobbied for legislation to encourage judges in domestic violence courts to deal with custody. The Violence Against Women Act gave funds to healthcare providers, law enforcement agencies, prosecutors, courts, and community advocacy services to study how their states were handling domestic violence, especially in their civil courts. Eventually these studies led legislative and judicial committees to recommend amendments specifically targeting the need for domestic violence judges to address child custody. No state went so far as to require these judges to address custody, however, out of concern that the requirement would delay decisions about protective orders in cases where delay could be deadly. More typically, in states amending their domestic violence statutes, the amendments merely exhorted judges to address custody in domestic violence court if custody was in issue. The statutes provided that judges “should” or “may” address custody in domestic violence court, stopping short of telling judges that they “must.” At least ten states, including North Carolina, went further with enhanced amendments that not only exhorted the judge to address custody but also gave the judge discretion to appoint a representative—a “custody guardian ad litem” (“GAL”)—for the child in a civil protective order case. The reformers believed that with the help of these GALs to gather facts, judges might have enough facts to address the custody issue without delaying an appropriate protective order.
These statutes encouraging judges to address custody in domestic violence court are now only a few years old, and there has been little analysis of what impact, if any, the statutes have had. This Article offers a first look at the handling of the custody issue in a domestic violence court.
