How Does a Domestic Violence Finding Affect Child Custody in California?

A domestic violence finding may have profound affects on child custody orders

Does Domestic Violence Affect Child Custody?

Domestic violence significantly affects child custody decisions in California. The courts prioritize the child's best interest, and domestic violence is a crucial factor. In this article, we will explore:

  1. How domestic violence affects child custody.
  2. The presumptions that arise from a finding of domestic violence in custody cases.
  3. How to overcome these presumptions.
  4. Steps victims of domestic violence or those falsely accused of domestic violence can take to protect themselves and their children.

Immediate Impact of Domestic Violence Claims

Domestic violence cases progress quickly. A victim can appear in Family Court the same or the next day to seek a restraining order, often without advance notice. This initiates the restraining order process, leading to a full hearing within a few weeks to determine the truth of the allegations. The findings from this hearing directly affect the child custody case.

Domestic Violence and Custody Decisions

Physical and Legal Custody

If the court finds that a parent seeking custody has "perpetrated domestic violence" against the other parent, the child, or the child's siblings within the past five years, there is a presumption against awarding that parent joint physical custody, joint legal custody, or sole custody.

Understanding California Family Code 3044

Presumption Against Custody for Perpetrators of Domestic Violence

Establishing the Presumption

If a court determines a parent has committed domestic violence within the last five years, it presumes that awarding custody to that parent is detrimental to the child's best interest. This presumption can be rebutted, but it is not easy.

Overcoming the Presumption

To overcome this presumption, the court must find:

  1. The perpetrator has shown that awarding them custody is in the child's best interest based on Family Code Sections 3011 and 3020.
  2. Additional factors, on balance, support the decision to overcome the presumption

Factors Considered

The court considers several factors, including:

  • Completion of a batterer's treatment program.
  • Completion of alcohol or drug abuse counseling, if appropriate.
  • Completion of a parenting class, if appropriate.
  • Compliance with probation or parole terms.
  • Compliance with any protective or restraining orders.
  • Whether the perpetrator has committed further acts of domestic violence.
  • If the perpetrator possesses a firearm or ammunition in violation of Section 6389.

Definition of Domestic Violence

A person is considered to have perpetrated domestic violence if they have intentionally or recklessly caused bodily injury, sexual assault, or placed another person in reasonable fear of imminent serious bodily injury. This includes actions such as threatening, striking, harassing, destroying property, or disturbing the peace. The definition of "abuse" and domestic violence is broad.

Court Findings and Evidence

Evidence Requirements

The court must find evidence of domestic violence, such as a conviction within the past five years, based on crimes defined as domestic violence. This finding can also be based on previous court determinations of domestic violence within the past five years.

Considering Evidence

The court must base its findings on relevant, admissible evidence, not solely on conclusions from child custody evaluators or Family Court Services staff.

Informing the Parties

In custody or restraining order proceedings involving allegations of domestic violence, the court must inform the parties about Family Code 3044 and provide them with a copy before custody mediation.

Importance of the Presumption Against Joint Custody

The presumption against awarding custody to a parent who committed domestic violence places a greater burden on that parent to prove they should receive joint custody. This presumption does not replace the best interest analysis but requires the parent with a domestic violence finding to demonstrate why shared custody is in the child's best interest.

What Can Victims of Domestic Violence Do?

If you are a victim of domestic violence and have a custody case, it is crucial to have experienced family law attorneys represent you. Protecting your children should be a top priority.

If you have been falsely accused of domestic violence, do not go to Family Court without experienced representation. Agreeing to a restraining order or losing a hearing without proper representation can negatively affect your child custody rights.

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Our experienced family law attorneys are here to help you navigate these complex issues. Contact us today for an affordable strategy session to determine your case's best course of action.

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