USA Trends and Developments Contributed by: Valentina Shaknes and Grace Chamoun Taranto, Krauss Shaknes Tallentire & Messeri LLP
Still, many of these statutes focus squarely on protect - ing the child, without expressly protecting the par - ent – often the survivor – who must escape abuse. A few forward-thinking jurisdictions have taken that next step. Alabama, for instance, recognises that if a parent relocates due to domestic or family violence, such relocation cannot be held against such parent in a subsequent custody or visitation proceeding (Ala - bama Code Section 30-3-132). Idaho takes a similarly enlightened approach, acknowledging domestic vio - lence as an affirmative defence to custodial interfer - ence (Idaho Code Section 18-4506). Thus, robust protections for victims of domestic violence must – at a minimum – include an express exception to the ban on unilateral relocations in cas - es of domestic violence, as well as protections for victims of domestic violence in subsequent custody litigations, so that these parents are not penalised for taking extreme measures to protect themselves and their children from harm. Recognition and implementation of robust legislation Experience shows, however, that having robust leg - islation by itself is not sufficient to protect victims of domestic violence unless the courts are able to rec - ognise and implement such legislation in the way that actually protects these victims. i) Schultz v Schultz In Schultz v Schultz , 145 Idaho 859 (2008), for exam - ple, a magistrate court in Idaho failed to properly bal - ance these interests. The mother endured years of physical abuse at the hands of her husband, including being locked in a room for two days, slapped, thrown to the ground, grabbed by her hair, punched in the stomach while pregnant, and subsequently physically assaulted in front of the child. The father was even - tually arrested for domestic violence and convicted, resulting in the mother fleeing with the parties’ daugh - ter to Oregon from Idaho. The mother obtained a restraining order, began anew, and provided a stable environment for herself and the child. Her husband later filed a motion in Idaho seeking return of the child and sole custody. And yet, despite the credible history of abuse, the lower court
ordered the mother to return with the child or relin - quish custody of the child to the father. The mother appealed and the Idaho Supreme Court reversed the decision, castigating the lower court for ignoring the best interests of the child and undermin - ing the palpable danger the mother and child faced if returned. Notably, the Idaho Supreme Court held – inter alia – that “[t]he magistrate court did not reach its decision through an exercise of reason” (Id at 866). The decision by the Idaho Supreme Court stands as a testament to the importance of adhering to justice over procedural rigidity. ii) Durand v Rose Similarly, in Durand v Rose , the defendant/mother fled with the parties’ two children from Louisiana to Texas after suffering an assault by the father in the presence of the children ( Durand v Rose , 2022-0300 (La App 4 Cir 15 September 2022), 366 So 3d 484, 497, writ denied, 2022-01727 (La 18 January 2023), 353 So 3d 127. The facts of this incident were disputed by the parties. The mother alleged that the father struck her, resulting in a black eye, and threatened to kill her. The father, conversely, denied ever threatening to kill her. He admitted that defendant sustained a black eye but testified (along with his friend) that “her eye ran into [his] elbow”. The father moved for an order granting him sole custody of the children and ordering their return to Louisiana. He also requested a civil warrant directing law enforcement to remove the children and return them to him pending further orders from the Louisi - ana district court. Further, he sought injunctive relief in the form of a temporary restraining order prohibit - ing the mother from removing the children from the state during the pendency of the action, as well as a preliminary injunction and a permanent injunction to the same effect. Following a two-day hearing on the issue, the district court denied the defendant’s request for sole custody, awarded the parties joint custody of the children, and designated the mother as the domiciliary parent – with the father having physical custody of the children the first weekend of every month, during the summer
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