A Critical Scoping Review of Custody Determinations in the Context of IPV: Institutional, Relationship, and Individual Level Factors Influencing Decision-Making

Background and Purpose: Separating/divorcing families are required to engage family courts regarding post-separation parenting arrangements. Some families (10-20%) end up in contentious scenarios triggering more court oversight, including mediation and/or litigation. Among these families, experiences of intimate partner violence (IPV) are common (40-80%). The presence of IPV can carry increased risk for the safety and wellbeing of child and adult survivors. In these cases, the courts order parenting evaluations, assessments completed by professionals, and which weigh heavily in these custody decisions. Research is sparse on how professionals from diverse fields such as law, social work, and psychology consider IPV in parenting evaluations and custody decisions. Additionally, survivor accounts in qualitative studies consistently highlight problems with how family courts handle IPV, citing continued abuse and system harms. This scoping review synthesizes the literature across diverse fields of study with emphasis on summarizing the guidance for decision-makers provides insight into what might be driving institutional level practices regarding custody and IPV. This knowledge is important for envisioning upstream solutions targeting systems-level change and preventing courts from perpetuating harms on already vulnerable families. This study asks: What does the research on child custody in the context of IPV say about factors considered by decision-makers in U.S. courts?

Methods: We used a scoping review methodology, useful for mapping an area of literature, following the Joanna Briggs Institute reporting guidelines, including the PRISMA-ScR checklist. Data extraction followed an a-priori extraction form. Following a 2006 review, our study covered peer-reviewed, English language, U.S.-relevant publications between 2006 - 2022. Of an initial 226 sources, 19 met inclusion criteria. 13 were conceptual, 6 were empirical (4 quantitative and 2 qualitative).

Results: Identified factors associated with custody determinations in the context of IPV at the Institutional level: using safety to evaluate children’s ‘best interests’, with IPV only sometimes relevant to safety and/or best interests. Relationship level: parents’ relationship as primary focus, especially the nature of IPV and whether and how it may impact their parenting and capacity to navigate post-separation scenarios. Individual level: separate evaluation of parents’ history, skills, and capacities, only sometimes encouraging contextual evaluation in the face of IPV.

Conclusions and Implications: Despite the critical importance of custody decisions for families’ safety and wellbeing when there is IPV, guidance for decision-makers often de-contextualize evaluative factors from experiences of IPV. Further, guidance is given in the face of sparse empirical evidence. Of particular concern is the lack of outcome-based research connecting decisions to resulting impacts for families. Reliance on evidence from general divorced/separated families is potentially dangerous given the qualitative accounts from survivors detailing ongoing abuse. There is an urgent need for empirical research on custody arrangements that promote safe and supportive relationships post-separation specifically for families experiencing IPV. This research must account for the complexity of IPV dynamics, ethical limitations of research on violence, embeddedness of these decisions within larger systems and institutions that perpetuate inequalities, and differences across professional groups involved in decision-making. Essential to this research are connections between researchers and practitioners within the courts.