Issues related to legal custody, physical custody and access may arise in connection to a separation. When one parent has been abusive to the other parent or to the children they share, such issues may end up on the table of authorities or courts.
The terms legal custody, physical custody and access have different meanings. Legal custody concerns legal responsibility for the child/children. To be able to make decisions on preschool or school, for example, the parent must have legal custody of the child. If two parents have joint custody, neither parent can solely decide on factors such as which school the child will go to. Thus, joint custody requires that the parents are able to work together. Whether the parents have sole or joint custody has nothing to do with where the child lives or how much the child sees either parent.
Physical custody and access can be organised in different ways, regardless of legal custody. For example, the child/children can move back and forth living with each parent every other week while only one of the parents has full legal custody. Similarly, both parents can have legal custody of the child, while the child permanently resides with one parent and meets the other parent every other weekend. One parent can even have sole custody and physical custody while the child has visitation with the other parent. The child must be registered at one address, which is usually the child’s permanent residence. The child’s registered address and/or permanent residence may be significant in terms of providing for the child and decisions related to the parent’s right to receive various forms of grants and child support.
If the parents are married when the child is born, then both parents are guardians. If the parents are cohabiting when the child is born, the father becomes a guardian once a paternity acknowledgement has been signed. The law regarding custody assumes that the child has two parents of different sexes and that the parents are the biological parents of the child. The law is different if a child has two parents of the same sex or multiple parents. For example, the parent who did not carry the child or who is not a biological parent of the child might need to adopt the child, even if the parents are married when the child is born.
Help to reach an agreement?
In most cases, the parents reach an agreement on legal custody, physical custody and access when they separate, with joint custody being most common. If the parents cannot reach an agreement, they are entitled to help and support on the issue of legal custody, physical custody and access. The Family Law unit can help with mediation to help the parents reach a solution they both can agree to. With the help of the Family Law unit, the parents can draw up a legally binding agreement regarding access that has the same status as a court order. The agreement must be signed by both parents and approved by the Family Law unit, which will examine the agreement to ensure it is in the child’s best interest. For mediation to work, both parents must have the child’s best interest in mind and not exert power over or abuse the other parent. If there are or have been violence and threats, then mediation may be unsuitable.
If the parents cannot agree
A petition for legal custody, physical custody and access can be filed in court. This means that one parent can file a lawsuit specifying how they want the court to rule in relation to legal custody, physical custody and access. When one parent files a lawsuit, the court requests an investigation by the Family Law unit, which includes interviews with both parents. Depending on their age and maturity level, the child/children might also be interviewed. The Family Law unit then makes a recommendation regarding legal custody, physical custody and access based on the best interests of the child. This investigation combined with the evidence presented and the testimony given in court form the basis of the court’s ruling.
All decisions concerning legal custody, physical custody and access must be based on the best interests of the child. To determine what is in the child’s best interests in a legal sense, an overall assessment is made. In particular, this focuses on the risk of the child being harmed and the child’s need of a close and good relationship with both parents.
If the Family Law unit’s investigation uncovers information indicating the child has suffered abuse or neglect or has experienced violence by or against a parent, then the administrator must inform the Social Services unit that deals with child protection issues. An investigation into the child’s need for support and assistance will then be initiated.
The Swedish Board of Health and Welfare’s handbook ”Våld – handbok om socialtjänstens och hälso- och sjukvårdens arbete med våld i nära relationer” ontains information about how the Family Law unit and other units of Social Services handle cases involving violence or other abuse.
Continued abuse after a separation
It is common for abuse of the mother to continue or even escalate after a separation. Through the children, a parent can continue to be abusive and destructive to the other parent, and thereby also their child/children. The Post-Separation Power and Control Wheel illustrates what forms the abuse may take after a separation. See the wheel at the bottom of the page.
Research also shows that many children who have experienced abuse by or against a loved one have themselves been the victim of neglect, direct violence or other abuse. If the child is a victim of abuse or neglect, there is a huge risk that the parent in question will continue the abuse after the parents have separated. A battered woman may choose to stay in an abusive relationship out of fear of leaving her child/children alone with the other parent. Many mothers have had to take all or almost all responsibility for the children before the separation. This may be because the father did not take responsibility or the mother wanted to protect the children from neglect and/or abuse. After a separation, the mother is no longer able to protect her children the same way.
It is important to inform the Family Law unit if you have been or are being abused by the other parent. Similarly, it is important to let them know about any abuse or neglect that is or could potentially occur to the child/children. Children who have experienced or are the victim of abuse have the right to support, help and protection against continued abuse. Read more about Social Services’ obligations regarding children who have experienced abuse in the Swedish Board of Health and Welfare’s handbook ”Våld – handbok om socialtjänstens och hälso- och sjukvårdens arbete med våld i nära relationer”.
Read more about children who have experienced abuse here.
Post-Separation Power and Control Wheel
The Post-Separation Power and Control Wheel was created by Domestic Abuse Intervention Programs, and is frequently used to provide examples of what forms intimate partner violence may take after a separation. It was developed based on interviews with an extensive number of women who experienced intimate partner violence.
The wheel shows examples of common ways that a father can use children from a relationship to continue exercising power and control over the mother after a separation. It is not an exhaustive list of all forms of abuse that a father could use, but provides common examples of abuse.