The American Law Institute's proposed model statute, Principles of the Law of Family Dissolution: Analysis and Recommendations, §§ 2.13 cmt. a (2002), likewise recommends that in cases involving domestic violence, the court "should impose limits that are reasonably calculated to protect the child, child's parent, or other members of the household from harm." These include reduced and supervised visitation.
Just such an approach was taken by the court in C.B. v. J.U. (PDF 52KB), 2004 NY Slip Op. 51181U, Not reported in 798 N.Y.S.2d 707 (2004). The court determined that because the father had raped the mother during the marriage and engaged in sexually inappropriate conduct with their daughter, custody should be awarded to the mother only:
"The existence of domestic violence is a factor that must be considered by the court with respect to decision making determinations, and mitigates against an award of either joint custody, "zones of responsibility" or any other form of shared custody. In the case at bar, it is overwhelmingly clear that the wife must have sole custody of the child. The husband has demonstrated a lack of insight and alarmingly poor judgment in his relationships with the wife and the child and has violated their physical and psychological boundaries on numerous occasions. Moreover, the husband's controlling personality and reluctance to address through treatment the problems which led to the need for supervised visitation, lead this Court to the inescapable conclusion that the child's best interests are served by granting sole custody to the wife, who has demonstrated a consistent ability to lovingly care and provide for the child and make decisions with the child's best interests of paramount concern."
— Id. at *9 (citations omitted).
Moreover, the domestic violence and sexual abuse warranted granting therapeutic visitation only:
"It further is clear that the supervision should be performed by a professional able to recognize risks to the child and assist the husband in obtaining insight to his behavior and modifying his behavior so that supervision may one day not be necessary. For this reason therapeutic supervision, rather than just a babysitter, is preferable. "
— Id. at *10.
Unfortunately, many families cannot afford to pay for supervised visitation. As a consequence it is not uncommon for judges to appoint a relative as the supervisor, which is fraught with potential problems. There is no easy solution. The Judicial Council of California in the Final Report of the Domestic Violence Practice and Procedure Task Force urges that, "every court should encourage the establishment of a facility or provider of supervised visitation and safe exchange services in the county so that in appropriate cases, each party to a restraining order proceeding who has children has access to supervised visitation and safe exchanges. To the extent feasible, the number of multilingual and multicultural programs should be increased (Judicial Council of California, Domestic Violence Practice and Procedure Task Force (PDF 2.46MB), 2008 at 17)."
A resource for establishing supervised visitation centers is the Safe Havens Supervised Visitation and Safe Exchange Program funded by the Department of Justice, Office on Violence Against Women. The program description states that it “provides an opportunity for communities to support the supervised visitation and safe exchange of children in situations involving domestic violence, dating violence, child abuse, sexual assault, or stalking. Studies have shown that the risk of violence is often greater for victims of domestic violence and their children after separation from an abusive situation. Even after separation, batterers often use visitation and exchange of children as an opportunity to inflict additional emotional, physical, and/or psychological abuse on victims and their children. Visitation and exchange services provided through the Supervised Visitation Program should reflect a clear understanding of the dynamics of domestic violence, dating violence, sexual assault and stalking; the impact of domestic violence on children; and the importance of holding offenders accountable for their actions."
The Department of Justice, Office on Violence Against Women in December 2007 published Guiding Principles Safe Havens: Supervised
Visitation and Safe Exchange Grant Program (PDF 553KB), which provides extensive detail on what is expected of Safe Haven grantees.
