A 9-year-old child covered in blood by his murdered mother. Aunt of a 14 month old shot dead in front of her niece. Both horrific tragedies, allegedly perpetrated by fathers with known histories of violence, occurred during child custody exchanges this year. These crimes were not isolated or unpredictable; were the predictable result of a legal system that compels victims of domestic violence to comply with joint custody orders. As we observe Domestic Violence Awareness Month, we must ask: Why do aggressive men with violent histories still have access to their children? And what can we do to prevent this dangerous practice?

Shockingly, Family Courts Award Joint or Sole Custody to Fathers Accused of Domestic Violence Around 70 percent of the time. Alleged abusers are also frequently granted unsupervised parenting time, unless their child was directly targeted. And even when supervision is required, it is often done by a family member in the privacy of the abuser’s home.

In recent decades, courts have increasingly favored joint legal custody, even when one parent has a history of violent abuse, and many states have “friendly parent” statutes. which emphasize co-parenting and penalize parents who resist. Fathers accused of domestic violence are twice as likely to seek custody, using the courts as a tool of continued control over their victims.

A recent example of the result of these trends made national headlines: Rachel Pickrel-Hawkins was sentenced to prison by a Colorado family court judge for refusal to comply with a custody order who provided parenting time to her ex-husband even though he was criminally charged for sexually assaulting their daughters. Although this set of facts was extreme, the judge’s involuntary commitment to joint custody did not surprise domestic violence advocates.

Research shows that abusers frequently target children after separation. The National Coalition Against Domestic Violence reports that children in domestic violence homes are 15 times more likely to be physically abused or neglected. A 2019 study funded by the US Department of Justice, found that in 78 percent of cases where child abuse was later verified, the judge initially dismissed the mother’s allegations.

The case of Kayden Mancuso in Philadelphia it was particularly tragic. Despite credible testimony from the mother and her therapist about her father’s dangerous behavior, the family court judge still ordered unsupervised parenting time for the father. Kayden died, the victim of what police called a murder-suicide by her father. According to the Center for Judicial Excellence, over 900 children involved in contested custody cases have been killed in the past 15 years, most by abusive fathers. At least 58,000 children currently living in dangerous homes as a result of custody orders.

But the judicial system, despite its shortcomings, is also where we find hope. We can prevent some of these unthinkable outcomes if we take what we know from research and apply it to the front lines. To do this, we must make it a priority to fund comprehensive, mandatory, and ongoing domestic violence training for judges and court staff who oversee family law cases. California is leading the way by adopting legislation in 2023, required judicial officers and arbitrators who perform duties in domestic violence or child custody matters to attend training courses that include the topic of “coercive control.”

We must also abandon the judicial presumption in favor of shared custody. A universal approach custody is just plain wrong, especially where there is an uneven power dynamic between the parents. A legal presumption pressures victims to accept whatever the abuser asks instead of going to trial. Why would a victim put herself through a painful, despicable court battle when the burden of overcoming joint custody is so great?

Third, we need to pay more attention to our domestic violence custody statutes. Last year, California lawmakers added “coercive and psychologically harmful control” as admissible evidence in family court hearings on the “best interest of the child” issue. And as a result of Kayden Mancuso’s case, Pennsylvania passed this year Kayden’s Lawwhich requires courts to conduct a thorough assessment of any history of abuse or violence and to make explicit findings about the safety of proposed parenting plans.

Finally, we must fund third-party monitoring services that allow victims to safely comply with co-parenting plans. The federal government allocated gRANTS under the Violence Against Women Act 2000 to create such programmes, but there is still a shocking shortfall. Here, New York State takes the lead with pending legislation to fund free supervision services at third-party agencies for families involved in family court.

In the 30 years since the passage of the Violence Against Women Act, the United States has made some progress in recognizing and criminalizing domestic violence. What we haven’t done is the much harder work of validating the existence of coercive and controlling behavior and addressing its ramifications, especially in the context of child custody. Related to domestic violence deaths and injuries are a direct result of downplaying victim accusations and categorically favoring shared custody. Time will tell if the very recent legal reforms will work, but we don’t have to wait until we implement them nationally. Children’s lives are at stake.

Dale Margolin Cecka is an assistant professor at Albany Law School and director of the Domestic Violence Litigation Clinic. She is a former Skadden Fellow at the Legal Aid Society of New York, where she has advocated for pregnant and teenage teens and parents exiting foster care.

GovernanceHis opinion columns reflect the views of their authors and not necessarily his own Governanceits editors or management.