Domestic violence is a serious issue – some would say an epidemic – in the United States. It often comes to people’s attention most vividly during divorce and child custody disputes.
If you’re wondering if the California family court system considers domestic violence when deciding on issues of legal custody, physical custody, and visitation rights, the answer is yes. The court wisely proceeds with caution on this issue because a finding of domestic violence can have a profound effect on a child and a child custody case for years.
Domestic Violence and Child Custody
California law states a person has committed domestic violence if they have:
- Intentionally or recklessly caused or attempted to cause bodily injury.
- Intentionally or recklessly caused or attempted to cause sexual assault.
- Placed another person in “reasonable apprehension” of imminent serious bodily injury.
Under California law, if either of the following two situations apply, the court will treat a child custody case as a domestic violence one:
- In the preceding five years a parent was convicted of felony domestic violence against the other parent.
- The court made a finding of domestic violence of one parent against the child or the other parent.
When either of these situations exist, the court will deny sole or joint custody to the domestic violence perpetrator unless they have overcome a rebuttable presumption against awarding joint custody.
This presumption is important because it places the burden of proof on the parent who was found to have committed the abuse. It is the parent’s burden to show the court why it is in the child’s best interest for him or her to share legal and physical custody.
Rebuttable Presumption Against the Abuser:
- Family Code § 3044 is the cornerstone here. If a court finds by a preponderance of the evidence (meaning it’s more likely than not) that a parent has perpetrated domestic violence against the other parent, the child, or the child’s siblings within the past five years, there is a rebuttable presumption that it is not in the best interest of the child for the abuser to have sole or joint legal or physical custody.
- What does “rebuttable presumption” mean? It means the court starts with the assumption that the abuser should not have custody. The perpetrating parent then has a heavy burden to prove to the court, through clear and convincing evidence, that giving them custody would, in fact, be in the child’s best interest. This is a very difficult presumption to overcome.
Factors for Overcoming the Presumption (Family Code § 3044[b]):
If a domestic violence perpetrator attempts to rebut the presumption, the court will consider several factors, including:
- Successful completion of a certified batterer’s treatment program.
- Successful completion of an alcohol or drug abuse counseling program (if applicable).
- Successful completion of a parenting class.
- Compliance with a protective order (e.g., restraining order).
- No further acts of domestic violence.
- Whether it is in the best interest of the child.
Impact on Custody Orders:
- Sole Custody for the Victim: Often, the non-abusive parent (the victim of domestic violence) will be awarded sole legal and sole physical custody.
- Supervised Visitation: If the abuser is allowed any contact with the child, it is almost always supervised visitation by a neutral third party (e.g., a professional supervisor, a trusted family member designated by the court). The court will likely order the abuser to pay the costs of supervision.
- No Joint Custody: Joint legal or physical custody is highly unlikely to be ordered if the domestic violence presumption is triggered, unless the abuser successfully rebuts it and demonstrates a significant change in behavior and safety.
- Protective Orders: A criminal protective order or a Domestic Violence Restraining Order (DVRO) will significantly influence custody and visitation orders. The court will ensure that any custody schedule does not violate the terms of such an order.
Court’s Prioritization of Safety:
- The court will look at the entire history of domestic violence, not just isolated incidents.
- They will consider the nature, severity, and frequency of the violence.
- They will also consider the impact of the violence on the child, even if the child was not directly physically abused. Witnessing domestic violence is considered a form of child abuse in California.
- False accusations are taken seriously. If a court finds that a party falsely accused the other of domestic violence, it can negatively impact their own credibility and potentially their custody request.
How Domestic Violence is Proven:
Domestic violence can be proven through:
- Police reports
- Medical records
- Photos/videos
- Witness testimony
- Testimony of the victim
- A criminal conviction for domestic violence
- A Domestic Violence Restraining Order (DVRO)
What You Can Do
If you are in a situation where domestic violence is an issue, keeping your child safe should be your top priority. If you believe your child has been or will be put in immediate danger, you can ask the court for an immediate emergency protective order.
The order can give you sole custody of your child and require the other parent to stay away from both of you. The order is a temporary fix, but it provides immediate safety for your child.
If you are a parent trying to protect your child from abuse, or one who has been accused of domestic violence, an experienced family law attorney who understands the ins and outs of California’s domestic abuse and child custody laws can help you understand your options.
Minella Law Group Can Help
📞 Call Minella Law Group today at 619-289-7948 to schedule a confidential consultation with one of our family law specialists. We’ll listen to your concerns, assess the situation, and create a clear strategy tailored to your goals.
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