United Nations Good Practice Legislation

Full Document Can Be Found Here 

Addressing child custody in protection order proceedings

Recommendation

Legislation should include the following provisions regarding child custody and visitation in protection order proceedings:

• presumption against award of custody to the perpetrator;
  
• presumption against unsupervised visitation by the perpetrator;
  
• requirement that, prior to supervised visitation being granted, the perpetrator must show that at least three months has passed since the most recent act of violence, that he has stopped using any form of violence, and that he is participating in a treatment programme for perpetrators; and no visitation rights are to be granted against the will of the child.

Commentary 

In many countries, violent offenders have used custody of children as a way to continue to abuse and gain access to survivors. In Georgia, the Law on Elimination of Domestic Violence, Protection of and Support to its Victims (2006) authorizes courts to consider the safety of the child in custody decisions in protection order proceedings. In Bulgaria, courts may temporarily relocate "the residence of the child with the parent who is the victim or with the parent who has not carried out the violent act at stake". Section 28 of the Philippines Anti-Violence against Women and their Children Act (2004) provides that "the woman victim of violence shall be entitled to the custody and support of her child/children and "in no case shall custody of minor children be given to the perpetrator of a woman who is suffering from battered woman syndrome". 56

Experience in some countries and cases suggests that custody decisions in protection order proceedings should be temporary and permanent custody issues should be dealt with only in divorce proceedings or family court. An alternative view is that courts deciding custody matters in protection order cases have a better understanding of domestic violence than courts deciding custody in the context of divorce or other family law matters, and should therefore be granted power to make permanent custody orders. Further recommendations regarding how to address child custody in family law proceedings are contained in part 10 of the framework.

Criminal offence of violation of a protection order

Recommendation

Legislation should:

• criminalize violations of protection orders.
  

Commentary

In countries where legislation does not criminalize the violation of a civil protection order, prosecutors and police have expressed frustration about their inability to arrest the perpetrator. In Spain, any violation of a protection order is criminalized and, when a protection order is violated, the survivor is entitled to a full hearing on whether aspects of the protection order should be amended, including the distance the perpetrator must keep away from the survivor, the duration of the protection order, or the use of electronic devices to track the perpetrator. In case of severe risk or great harm, the offender may be put in precautionary pre-trial detention. Violation of a protection order is a criminal offence under section 17 of the South African Domestic Violence Act (1998). When a court issues a protection order under that Act, it also issues a warrant for the arrest of the respondent which is suspended subject to compliance with the order. The Domestic Violence Crime and Victims Act (2004) of the United Kingdom specifically criminalizes breach of a protection order, and in Turkey, a perpetrator who violates a protection order may be sentenced to prison for three to six months. Under the Philippines Anti-Violence against Women and their Children Act (2004), violation of a protection order is a criminal offence punishable by a fine and/or six months imprisonment. Some countries, such as Bulgaria, are in the process of considering amendments to existing legislation to criminalize violations.