What Can I Do If My Child Has Confirmed Choking Injuries but the Court Still Orders 50/50 Custody?

Why Would a Court Still Order Custody Returns Despite Evidence of Abuse?

This is one of the most distressing situations a parent can face. Under Maine divorce law, courts operate on existing orders until a judge formally modifies them. Even when abuse allegations are serious, a sitting custody order remains enforceable until a new order replaces it. Violating a court order — even with good intentions — can result in contempt charges and damage your credibility.

According to the U.S. Department of Health & Human Services, approximately 678,000 children were victims of abuse or neglect in a single recent reporting year, and roughly 75% of perpetrators are parents. Maine DHHS investigated over 5,200 child abuse referrals in its most recent annual report.

What Legal Steps Should I Take Right Now?

1. Emergency Protection From Abuse Order

Under 19-A M.R.S. § 4006, Maine courts can issue emergency protection orders that temporarily suspend visitation when there is credible evidence of abuse. You should:

• File for a Protection From Abuse (PFA) order at your county's District Court
• Bring medical documentation (PCP report confirming bruising consistent with trauma)
• Bring the CPS/DHHS report number and police report
• Request a temporary order — judges can grant these the same day without the other parent present

A temporary PFA typically lasts 21 days until a full hearing can be scheduled.

2. Motion to Modify Parental Rights and Responsibilities

File immediately to modify your existing custody arrangement. Under 19-A M.R.S. § 1657, Maine courts can modify parental rights when there has been a substantial change in circumstances — confirmed physical abuse of a child clearly qualifies. The court must consider the best interest of the child under 19-A M.R.S. § 1653, which includes:

• Each parent's capacity to allow and encourage a close relationship with the other parent
• The existence of domestic violence or child abuse
• The child's safety and well-being

3. Request a Guardian Ad Litem (GAL)

A GAL is an attorney appointed by the court to independently investigate and represent your children's best interests. For a nonverbal 5-year-old, a GAL is especially critical because the child cannot testify or advocate for themselves. Maine appoints GALs under 19-A M.R.S. § 1507. Studies show that GAL recommendations align with final court orders in roughly 85% of contested cases.

How Do I Protect My Nonverbal Child Specifically?

Your nonverbal child is uniquely vulnerable. Consider these steps:

• Document everything — photograph injuries with timestamps, keep a detailed journal of behavioral changes
• Request a forensic interview through Maine's Children's Advocacy Centers for your 7-year-old, whose statements can serve as evidence
• Ask your pediatrician to document any behavioral regression, sleep disturbances, or anxiety symptoms in both children
• Do not coach either child — courts are trained to detect coached statements, and it will undermine your case

Review our Maine divorce checklist and Maine divorce resources for court forms and local legal aid contacts.

What Should I Avoid Doing?

Do not withhold the children from court-ordered visitation without a judge's order authorizing it. In Maine, custodial interference under 17-A M.R.S. § 303 is a criminal offense. Instead, document everything and return to court immediately.

This situation demands experienced legal representation. A family law attorney can file emergency motions, coordinate with DHHS, and ensure the evidence is presented properly. Find an exclusive divorce attorney in your county who handles high-conflict custody cases.

For more on how Maine handles these decisions, review Maine divorce statistics and our Divorce Questions hub for related topics.