Violence against women and child custody issues
(31 May 2019) The Platform of undersigned United Nations and regional independent mechanisms on violence against women and women's rights1 voiced its concern over patterns across various jurisdictions of the world that ignore intimate partner violence against women in determining child custody cases. These patterns reveal underlying discriminatory gender bias and harmful gender stereotypes against women. Ignoring intimate partner violence against women in the determination of child custody can result in serious risks to the children and thus must be considered to ensure and grant their effective protection.
https://www.ohchr.org/en/edvaw/violence-against-women-and-child-custody-issues
https://www.ohchr.org/sites/default/files/Documents/Issues/Women/SR/StatementVAW_Custody.pdf
The Platform members addressed this issue during the conference on "Women's rights at the Crossroads: strengthening international cooperation to close the gap between legal frameworks and their implementation" hosted by the Council of Europe on May 24th 2019 in Strasbourg (France). In its follow up evaluation of the results, the Platform calls on States to pay particular attention to these patterns and to take the necessary measures to ensure implementation of international standards that require that intimate partner violence against women is thoroughly weighed in the determination of child custody.
The Platform members hold the view that abusive relationships between parents predominantly affect women and have direct impacts on the children's life, yet violence against women is rarely considered as relevant factor by national authorities in child custody decisions. There is also no doubt that intimate partner violence predominantly affects women, and yet the correlation between domestic violence against women and child abuse is most often underestimated by practitioners and courts. Gender bias against women in such contexts is prevalent as women subjected to intimate partner violence are at higher risk of negative custody-visitation outcomes.
In the case Jessica Lenahan (Gonzales) v. the United States, the InterAmerican Commission of Human Rights (IACHR) addressed the duties of the State to respond to situations of domestic violence with diligent protection measures and analyzed the correlation between intimate partner violence against women and child abuse, in particular when the parties within a marriage separate.2 The IACHR concluded on the international responsibility of the State, since its agents failed to ensure compliance with the protection measure granted to Ms. Lenahan; failed to comply with their obligation of due diligence; and failed to protect the rights of the children who were abducted and murdered by their father.
In the Gonzalez case3 , where an abusive father, during an unsupervised visit, murdered his daughter and then took his own life, the CEDAW Committee found that, by ruling to allow unsupervised visits without giving sufficient consideration to the background of domestic violence, the Spanish authorities had failed to fulfil their due diligence obligations under the Convention (para. 9.7) The Committee recommended, among others, that any history of domestic violence be considered when determining visitation schedules in order to ensure that these do not endanger women or children.