Nothing affects children like domestic violence. Recognizing this, California courts are empowered to deal harshly with the custody and visitation rights of those found to have committed domestic violence. Before a parent’s rights may be impacted, however, certain requirements must be met.
Domestic violence is defined to include causing or attempting to cause bodily injury or sexual assault, placing someone “in reasonable apprehension of imminent serious bodily injury to that person or another,” as well as “threatening, striking, harassing, destroying personal property or disturbing the peace of another.” Domestic violence is not limited to physical conduct but includes oral or written conduct that otherwise fits the definition of the law.
The first requirement of the law is that there must be a court finding of domestic violence in the last five years. This requirement can be met in two ways:
- The person has been convicted of domestic violence or abuse, as defined in specific California laws; or
- Any court has made a finding that the person committed domestic violence.
After the first requirement is met, “there is a rebuttable presumption that an award of . . . custody [to that person] . . . is detrimental to the best interest of the child.” This means that the parent who committed domestic violence has an extra heavy burden before custody of any type may be awarded to him. The law directs that the court must consider several factors in determining whether this burden is met:
Whether the parent against whom the finding was met has showed that it is in the child’s best interest for him to receive some form of custody;
- Whether the perpetrator completed any court-ordered batterer’s treatment program, alcohol or drug abuse counseling, or parenting class;
- Whether the perpetrator has complied with the terms of his probation or parole, if applicable;
- Whether the perpetrator’s conduct is governed by a protective or restraining order and, if so, whether he has complied with its terms; and
- Whether the perpetrator has committed further acts of domestic violence.
When someone files a credible report regarding a child in danger, an investigation must be conducted by either a social worker or the police. They will decide if the child appears to be in imminent danger and whether it is necessary to remove the child from his or her home.
Police or the social workers may decide that a child should be placed in temporary foster care for his or her safety if they believe the child was neglected, molested, or abused. The child may be sent to live with a relative, to the other legal parent if the parents do not live together, or to a foster home or shelter.
Once a child is removed from the home, social services should conduct a deeper investigation about the home environment, the parent or other caretakers, and the child. After an investigation, social services will make recommendations regarding what action they consider to be best for the child’s safety and personal wellbeing. They may recommend filing a petition in court to have a child declared “dependent.”
If you believe you have been wrongfully targeted by social services and need someone on your side to fight for you and your child, seek the help of an experienced family law attorney as soon as possible. A delay could be used against you by social services later.
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Domestic violence affects every class and race in every city and county in California. Sometimes the abuse remains hidden, but help is available through law enforcement and the courts. The first step beyond a routine police report for a victim of domestic violence is often seeking a restraining order against the abuser, and it is possible to get a restraining order against your husband or wife while you are still married.
When children are involved, the urgency of the situation escalates rapidly. While a restraining order is only a piece of paper and may not stop a determined abuser, it can be an effective deterrent for an abuser who values his freedom. An abuser who violates a restraining order can be arrested on the spot and jailed for a time — at least long enough for victims to seek a safe place.
At the Law Offices of Judy L. Burger, we offer the full range of legal services for victims of domestic violence. We can seek a restraining order, a temporary custody and support order if necessary, and aggressively pursue a divorce at the same time. We believe in striking fast and finishing strong in high conflict cases, including those where domestic violence is a factor.
It is important to note that over many years of practicing law, we have seen cases where a spouse claims domestic violence where there is no evidentiary support for the abuse. We strive to represent the facts to a court honestly and will not knowingly present false information. If you are a spouse who has been accused of domestic violence where none exists, and you believe the accusation was made to enhance your spouse’s standing in a pending divorce or custody case, contact us to discuss your options.
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