Child Custody, Domestic Violence, and the Rebuttable Presumption

Child Custody, Domestic Violence, and the Rebuttable Presumption

Judges consider many factors before deciding on child custody arrangements. A history of domestic violence is only one issue, but it is a truly important one when considering what is in the child’s best interests. But when custody hinges on a domestic violence incident, a rebuttable presumption occurs.

What does rebuttable presumption mean?

In a legal context, it means “an assumption of fact accepted by the court until disproved.” Judges might rule based on the facts currently in front of them.

The rebuttable presumption means they know that contradicting information could be presented in the future. The judge’s ruling could change based on that new set of facts.

And what does it have to do with child custody?

The connection is that the rebuttable presumption could pertain to a judge’s child custody arrangement. Often, domestic violence accusations or convictions play a part. The judge realizes that granting custody to someone who committed acts of domestic violence is not in the child’s best interests.

The rebuttable presumption here is that:

  • Fact: One party seeking custody of a child has committed domestic violence in the prior five years.
  • Presumption: Granting custody to that party could be detrimental to the child.

The party who was denied custody could overcome this presumption. However, they must do so by a “preponderance of the evidence.” This means that the party must have more evidence to support their claims than the evidence against them. 

What factors affect the rebuttable presumption about child custody?

First, the party accused of domestic violence must prove that granting custody is no longer detrimental to the child. In other words, overcome the judge’s rebuttable presumption.

California family law offers the following reasons that a party might overcome rebuttable presumption:

Additional factors affect whether presumption can be rebutted. For example, has the party:

  • completed a batterer’s program.
  • completed any court-ordered alcohol or drug counseling.
  • finished any parenting class if the court deems it appropriate.

Courts might not be swayed by a perpetrator of domestic violence when:

  • They are on probation or parole or have not complied with the terms of their probation or parole.
  • There’s a restraining order in place against the party, or they have not complied with a restraining order against them.
  • They have committed other acts of domestic violence.

One factor that generally does not help overcome this presumption is the need for a child to have frequent contact with both parents.

Issues involving divorce are often complicated. Rebuttable presumption is even more so. We encourage you to discuss your divorce with an experienced divorce attorney as soon as possible.

Does Your Divorce Contain a Rebuttable Presumption?

This issue could go both ways. You could be someone who has to overcome the rebuttable presumption. But you could also be someone trying to uphold that presumption by proving that the other party should not get custody. Either way, we can review your case and help you consider your options.

The attorneys at the Law Offices of Judy L. Burger are experienced at all phases of divorce, legal separation, and annulment. Call us at 415-293-8314 to schedule a private appointment or visit our website. We assist clients along California’s Northern to Southern Coast, including San Francisco, Beverly Hills, Marin, San Jose, Gold River, San Diego, Santa Barbara, Ventura/Oxnard, and surrounding communities.

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