How Does Domestic Violence Affect Child Custody Orders in California?

Domestic violence affects not only your life but your children, as well, regardless of whether they were directly subject to the violence. It is essential to understand how your custody case will be determined by the Court if there’s a finding of domestic violence.

How Does California Define Domestic Violence?

California Family Code 3044 describes what it means to “perpetrate domestic violence.” Sections (c) through (f) of this Code section state:

(c) For purposes of this section, a person has “perpetrated domestic violence” when he or she is found by the Court to have intentionally or recklessly caused or attempted to cause bodily injury, or sexual assault, or to have placed a person in reasonable apprehension of imminent serious bodily injury to that person or to another, or to have engaged in any behavior involving, but not limited to, threatening, striking, harassing, destroying personal property or disturbing the peace of another, for which a court may issue an ex parte order pursuant to Section 6320 to protect the other party seeking custody of the child or to protect the child and the child’s siblings.

(d) (1) For purposes of this section, the requirement of a finding by the Court shall be satisfied by, among other things, and not limited to, evidence that a party seeking custody has been convicted within the previous five years, after a trial or a plea of guilty or no contest, of any crime against the other party that comes within the definition of domestic violence contained in Section 6211 and of abuse contained in Section 6203, including, but not limited to, a crime described in subdivision (e) of Section 243 of, or Section 261, 262, 273.5, 422, or 646.9 of, the Penal Code. (2) The requirement of a finding by the Court shall also be satisfied if any court, whether that Court hears or has heard the child custody proceedings or not, has made a finding pursuant to subdivision (a) based on conduct occurring within the previous five years.

(e) When a court makes a finding that a party has perpetrated domestic violence, the Court may not base its findings solely on conclusions reached by a child custody evaluator or on the recommendation of the Family Court Services staff, but shall consider any relevant, admissible evidence submitted by the parties.

(f) In any custody or restraining order proceeding in which a party has alleged that the other party has perpetrated domestic violence in accordance with the terms of this section, the Court shall inform the parties of the existence of this section and shall give them a copy of this section prior to any custody mediation in the case.

What is California’s Public Policy on Child Custody and Domestic Violence?

It is public policy in California that all decisions about child custody must be made in the “best interest of the child(ren),” regardless of whether or not domestic violence is a factor. (Cal. Fam. Code §§ 3011, 3020, and 3021). All decisions about child custody must focus first and foremost on the health, safety, and welfare of the child(ren). (Cal. Fam. Code § 3011). California law makes it clear that children not only have the right to be free from domestic violence perpetrated against themselves, but also to live in a household that is free from domestic violence in any form. (Cal. Fam. Code § 3020(2024).)

How Does Domestic Violence Affect a Custody Determination?

There is a presumption in California that it is not in the best interest of the child(ren) for a parent who has perpetrated domestic violence to have custody.

If the Court finds a parent who seeks custody of a child, joint or otherwise, has “perpetrated domestic violence” against the (a) other parent, (b) the child or (c) the child’s brothers or sisters, within the last five years, a presumption is created that states the parent who committed such acts should not be awarded custody of the child(ren).

This “presumption” is essential because it places a more significant burden on the parent who committed the domestic violence to show why they should get joint custody and why such an order would be in the best interest of the child(ren).

Suppose a Court finds no fault in a domestic violence proceeding. In that case, the Court will consider other factors when determining child custody, including the relationship between the child(ren) and each parent, the parent’s ability to care for their child(ren), and any other factors the Court deems relevant.

What Temporary Custody Orders Can I Get in a Domestic Violence Case?

The Court may make temporary custody orders before a formal hearing if the requesting parent demonstrates the child(ren) is/are in “immediate harm .”The Court may either make new orders or changes to existing orders. “Immediate harm” includes having a parent who has committed any domestic violence or has an ongoing pattern of violent behavior. (Cal. Fam. Code §§ 3044(g), 3064, 6323).

How Does a Parent Who Committed Domestic Violence Overcome the Presumption outlined in Family Code Section 3044?

According to California Family Code Section 3044, once the Court has found domestic violence against one parent, it is that parent’s burden to prove that sole joint or legal custody of a child(ren) is in the best interest of the child(ren) pursuant to Cal. Fam. Code §§ 3011 and 3020. The presumption may only be rebutted by a preponderance of the evidence (> 50%).

In addition to proving by a preponderance of the evidence (> 50%) that joint custody is in the best interest of the child(ren), the Court will consider the following factors:

A) Whether he perpetrator has completed a batterer’s treatment program that meets the criteria outlined in subdivision (c) of Section 1203.097 of the Penal Code.

(B) Whether the perpetrator has completed a program of alcohol or drug abuse counseling if the Court determines that counseling is appropriate.

(C) Whether the perpetrator has completed a parenting class if the Court determines the class to be appropriate.

(D) Whether the perpetrator is on probation or parole and has complied with the terms and conditions of probation or parole.

(E) Whether the perpetrator and has complied with the restraining order’s terms and conditions.

(F) Whether perpetrator of domestic violence has committed further acts of domestic violence.

(G) Whether the perpetrator is a restrained person in possession or control of a firearm or ammunition in violation of Section 6389.

If you are a victim of domestic violence, your well-being, as well as the well-being of your children is at risk. Contact Laughlin Legal today to seek court intervention to ensure your health, safety, and welfare, as well as that of your children.