Domestic Violence and Child Custody

When your spouse is violent with you or your children, obtaining child custody is extremely important. Your first priority is to keep your children safe, then yourself. Domestic violence and child custody are two extremely complicated subjects. This page attempts to provide some basic information how a courtroom views the family situations when these two issues exist. If you have an urgent issue, call a family law attorney immediately.

Domestic abuse can come in many forms, including physical, mental, emotional and even economic abuse. Unfortunately, there are lasting effects on the victim and their family, especially the children. Courts take domestic violence and abuse seriously when making decisions about who is responsible for the children. Too often victims don’t realize that they’ve been abused until it’s become physical. When you get the court involved, it’s important to understand what California defines as domestic violence.

 

Definition of Domestic Violence

California Family Code 3044 helps us define “domestic violence” by identifying the behaviors:

  • Intentionally or recklessly caused or attempting to cause bodily injury.
  • Sexual assault.
  • Making another person feel afraid that they or their child is in immediate danger of bodily harm.
  • Any other behavior involving threatening, striking, harassing, destroying property of another person.

These behaviors are considered domestic violence if the actions were taken against a current spouse or former spouse, people who live together or used to live together, people who are related by blood or marriage, people who have a child together, another person’s child, or people who are dating or have been dating or engaged.

Now that we know the definition, we can examine how domestic violence and child custody affect a family law judge’s child custody order.

What is a Child Custody Order?

In a typical child custody case, the Judge makes a custody order. This order it must be followed by both parents. The child custody order lays out who is responsible for the child, as well as the visitation guidelines. This order can be modified if both parents agree to make significant changes. Of course, the modifications must go through the California court to ensure that the changes will make a positive impact on the children.

There are several types of child custody. They are all variations of physical and legal custody. A child lives with the parent who has physical custody and that parent is responsible for the child’s daily routine, such as providing meals, transportation to school and bedtimes. The parent with legal custody is the one that makes important decisions about the child’s health care, education and welfare. Parents may be given sole custody or joint custody, depending on what the court sees as the best option for the child.

If you want to know how to get full custody of your children, read this page for an overview of the law that applies in Orange County, CA. If you need to fight false child abuse allegations, definitely read this page.

Now let’s look at domestic violence and child custody.

Domestic Violence and Child Custody | Family Law Attorney

What Happens When Domestic Violence is Involved?

A judge has the responsibility of reviewing both parent’s history, including whether they have been convicted of domestic violence within the last 5 years. The child custody case will be considered a domestic violence case if a parent has been convicted of domestic violence against the other parent or children.

When considering a case of child custody with one or both parents having a history of domestic violence, the judge has to consider these questions:

  1. Is it in the best interest of the child to give one or both parents physical or legal custody?
  2. Has the perpetrator of domestic violence (the abuser) completed a batterer’s treatment program that meets the necessary criteria?
  3. Has the perpetrator successfully completed a drug or alcohol abuse program, if ordered by the court?
  4. Has the perpetrator completed a parenting class?
  5. Is the perpetrator on probation or parole and has he/she been complying with the terms and conditions?
  6. Is there a restraining order or protective order against the perpetrator?
  7. Has the perpetrator further committed any other acts of domestic violence?

When there is a case of extreme violence, the abusive parent’s rights may be completely terminated. The court decides if it is in the child’s best interest to take away all rights to both physical and legal custody of the child. This rarely happens. But when it dies it is usually permanent and cannot be regained. This only happens when parents have neglected or treated a child with extreme cruelty.

The best interest of the child in domestic violence and child custody cases looks at two guiding policies[1]:

  • The health, welfare, and safety of the child must be a court’s primary concern
  • Children benefit from frequent and continuing contact with both parents

Exceptions

Usually, a judge cannot give custody to a person who has domestic violence in their history, but visitation is still allowed. There are circumstances in which a parent who committed domestic violence can get custody. According to the California Family Code 3044:

“Upon a finding by the court that a party seeking custody of a child has perpetrated domestic violence against the other party seeking custody of the child or against the child or the child’s siblings within the previous five years, there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child, pursuant to Section 3011. This presumption may only be rebutted by a preponderance of the evidence.”

A judge can allow a parent, with a history of domestic violence, to have custody when[2]:

  • It is in the best interest of the child
  • The perpetrator has:
    • Completed a 52-week batterer’s program
    • Not committed any more acts of domestic violence
  • The perpetrator has obeyed the court’s orders to:
    • Complete a counseling program for drug or alcohol abuse
    • Follow all terms of probation, parole, or a protective or restraining order

These rules apply to anyone that is seeking custody of a child, even if they are not a parent of the child, including grandparents and other non-parent individuals.

Visitation in Domestic Violence and Child Custody Cases

It’s mandatory for a judge to grant visitation rights to both parents, unless it would negatively affect the child’s best interest. If a parent has a history of domestic violence, it would not be good for the child to be exposed to that parent too much. In this case, the judge can order supervised visitation or ban overnight visits. If a parent has been issued a protective order, he/she may be granted conditional visitation or may even be denied visits with the child altogether.

What a Victim of Domestic Violence Can Do

As a parent, your top priority is to protect your children. Domestic violence is one of the five most common ways parents lose custody. Domestic violence and child custody are a big deal. If you or your child have been victims of domestic violence, you can request an emergency protective order and offer evidence as the basis for receiving temporary custody of the child. You can file a motion to kick your spouse out of the house. If the court deems that the protective order is not enough to keep the child safe during a custody case, they may step in and do whatever they decide is necessary to protect the child until investigation is complete. This may include terminating all parental rights completely.

If you or your children have been victims of domestic violence, don’t wait to contact a family lawyer. Domestic violence and child custody are too important to handle alone. Having an experienced lawyer will give you a better chance when you step into court to fight for custody of your children. This is a serious situation and must be done correctly. Call for a consultation to see if you have a strong case for child custody.

[1] Family Law Code § 3020

[2] Family Law Code § 3044

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