Innovative Approaches to Child Custody and Domestic Violence in New Zealand

Abstract

Summary In 1995, as part of a major review of domestic violence law, the New Zealand Parliament amended the legislation under which disputes about custody of and access to children are determined by the Court. Specifically, the amendment introduced a rebuttable presumption that a parent who had used violence against a child or against the other parent would not have custody of, or unsupervised access to the child unless the Court could be satisfied that the child would be safe during visitation arrangements. Three years after the implementation of this legislation, it is timely to reflect on the impact of this major domestic violence law reform initiative. Our findings indicate that there are indeed advances. Psychological violence is now clearly being considered when Courts are assessing the issue of children's safety. As well, the delineation of mandatory risk assessment factors has led many judges to see a continuum of power and control tactics as relevant in domestic violence related visitation proceedings; the previous emphasis on physical violence has given way to an analysis which more closely reflects accords with women's and children's realities of the abuse they are exposed to. Some of the old problems continue to exist despite the law changes. There are still recent cases where perpetrators of serious violence are awarded unsupervised access and where their violence continues to be construed as “out of character,” arising because of the perpetrator's “despair” about the breakdown of his relationship. These and other issues are discussed.

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