Custody of Children and Court Trials

Custody of Children and Court Trials

The Civil Procedure Code of 2018, in particular Chapter 22, identifies the peculiarities of proceedings for family disputes. Especially Article 203 defines the obligation of the courts to act based on the necessity of ensuring the child’s best interests. The experience of organizations dealing with domestic violence shows that before the determination of the children’s place of residence by the court, those children who continue to live with the abuser are deprived of the right to see their mother and the latter is deprived of her visitation rights. Even in cases when the child is an infant, the child from his/her mother even during the breast feeding period. The legal obligations continue to remain problematic within the judiciary. Court hearings are delayed unnecessarily or not enough importance is given to the best interests of the child. Judges approach the issue with subjectivity and display gender stereotypes in their judgement.

After 2018, several petitions were submitted to the courts requesting that temporary custody of the child be given to the mother (away from the abusive father) until the court made a final decision. In some cases the judges granted the petitions and in other cases they didn’t, stating that the case is not well-founded. These varying court decisions speak to the subjectivity of the judges and lack of procedural norms.

Lawyer of Women’s Support Center NGO

Article 31 of the Istanbul Convention states that Parties shall take the necessary legislative or other measures to ensure that the exercise of any visitation or custody rights does not jeopardise the rights and safety of the victim or children.28 In cases of domestic violence, issues regarding an offspring are often the only remaining factor that ties the victim and perpetrator. For many victims and their children, complying with contact orders can present a serious safety risk.29 The European Court of Human Rights also addressed this issue in the case of O.C.I. and others vs Romania. In the decision the Court stated that when giving custody of a child to a parent, it must consider in advance the severe risk of domestic abuse for that child. 30

In Armenia, disputes involving children, such as the right to alimony, the granting of visitation rights, and the custody of the child, are considered based on general regulations without taking into consideration the existence of domestic violence. This is based on the principle that the abuser and victim of violence have equal rights and guarantees. Therefore, the fact of domestic violence, per se, does not impose any limitation or sanction on the abuser. Moreover, in practice, in certain cases of domestic violence, the abusers are afforded more favorable judgements than the victims of violence. As a result, the courts often give more weight to the property and personal interests of the abuser, than they do to the victim of violence. Consequently, courts decide for disproportionally low alimony payments and determine visitation schedules that completely ignore the high risk of repetition or continuation of abuse and thus threaten to harm the children psychologically and physically. In practice, judges determine

28 See Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence, https://rm.coe.int/168046246d. 29 See Explanatory Report to the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence, paragraph 175-176, https://rm.coe.int/16800d383a. 30 https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-193069%22]}:

the place of residence for the child with the abuser because they reason that currently the victim of violence has no luxurious place of residence or a high-paying job, etc.31

Recommendations:

1. A real Child Protection Services be established and run by paid professionals trained in DV. Mechanisms and procedures should be developed;

2. DV Law should be amended to insure that a child can be immediately temporarily removed from toxic and unsafe families by the Child Protection Services until a court decision is obtained;

3. Children should not be allowed to offer repeated testimonies or appear in court in front of both parents, but rather they should have to testify only once, in a special room, with a skilled interviewer;

4. Custody of children should be given to the parent that is not abusive and custody decisions should be made by the court in an expedited way, within a few months, and not be allowed to drag on in courts for years and years;

5. The RA Criminal Code must include aggravating circumstances for domestic violence committed in the presence of children;

6. Legal amendments must be made to allow and ensure the involvement of support centers in trials to protect the interests

31 Interview with the representative of Women’s Support Center NGO