When making custody decisions a trial courts tend to weigh the current behavior of a parent even though the parent may have acted irresponsibly, abusively or even violently in the past.
In J.C. v. J.W., 2017 Pa. Super. Unpub. LEXIS 4033 there was good credible evidence indicating that the Father had a clear history of malicious behavior toward the other parent. The Court went so far as to find that the Mother had been a victim of abuse at the hands of Father. The Court found that the abuse had been both physical and verbal. The Court did note that although there was a history of abuse – that importantly, that there was no recent abusiveness. The Court further noted that not only had the Father been abusive, the Father had also engaged in subtle attempts to turn Child against Mother, and has engaged in “extremely aggressive behavior,” which has worsened the already high level of conflict between the parties. The evidence demonstrated that the Father assaulted the Mother, when the party’s son was in the high chair. The testimony indicated, “He went to get my phone out of my purse. We had been arguing the night before. He hadn’t been staying there. He was getting his stuff to move out. And he took my phone over something we were arguing about, and I asked to get it back. He threw me into the door. Then when I got up, he smashed my phone, he kicked me. And my son was screaming and crying in his high chair.” The bottom line here is that the father had been physically and verbally abusive and had engaged in character assassination against the Mother with the children. This is obviously horrible behavior – but it is important to note that the Court found that this behavior had occurred in the past.
Despite finding this past reprehensible behavior, the Court nevertheless concluded that there was no risk of harm to the child, and that there was no current credible risk of harm to Mother. The Court made this determination even though it did find Mother’s fears of potential abuse credible based on the past abuse by Father. The Court found that the Mother’s fears were reasonable given the past actions of the Father. The Court also expressed its concerns regarding the potential emotional damage that could be caused to the children by the conflict between the parties. However, for whatever reason the Court concluded that the past abuse by Father did not prevent the Court from ordering the parties to undergo co-parenting counseling. The Court did not change custody.
The two takeaways from this decision are first, that past transgressions may have an effect – but that given current normal behavior it is possible to overcome past transgressions. Second, parties seeking modification should note that it is no foregone conclusion that even with solid evidence of past abusive behavior, that the Court will remove custody from the abusive parent. Please note that this abuse is abuse between the parties, but not regarding abuse of the child in question.