Domestic Violence and Custody Proceedings: An Analysis of Judicial Decisions in Portugal

Abstract

Purpose

To understand court decisions in custody cases involving allegations of domestic violence, a qualitative study was conducted among Portuguese family court magistrates.

Methods

A nonprobabilistic snowball sampling process, which involved six judges from Portuguese family courts who were authorized by the Superior Magistrate’s Court to participate in an interview, was used to construct the sample.

Results

When the data were analyzed, three main themes emerged, namely, the characteristics of the processes, the factors considered in the judicial decisions, and the impact of shared custody. The results also revealed several legal and extralegal aspects that influence judicial decisions, such as the characteristics of the violence, the mediation process, and the status attributed to victims, suggesting that there are objective and subjective factors in the perpetuation of violence.

Conclusions

Allegations of domestic violence in custody proceedings are not uncommon, and these allegations can complicate the process and delay a decision. Efforts by one parent to restrict contact with the other parent raise suspicions of attempted alienation that tend to undermine the risk assessment. There can also be overreliance on shared custody, potentially undermining children’s safety. The negative impacts of exposure to domestic violence and the instrumentalization of children are recognized, but it is questionable whether they are being prevented to the extent advocated by the Istanbul Convention. The effectiveness of communication between criminal and family courts is also debatable, despite its importance for protecting victims.