How Does a Finding of Domestic Violence of a Parent Affect Child Custody Orders?

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.

The requisite finding cannot be based solely on either a child custody evaluator’s conclusions or a Family Court Services staff member’s recommendation. Rather, the court must consider “any relevant, admissible evidence submitted by the parties” in making its finding.

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.

The health and well-being of your children are of paramount importance to the State of California. If domestic violence is an issue in your family, you need an attorney to fight for you and your children. The attorneys at the Law Offices of Judy L. Burger have extensive experience in divorce, child custody, and child support matters. Make the call today to learn how our attorneys can protect you and your children: (415) 293-8314.