How Does Domestic Violence Affect My Rights In an Orange County Child Custody Case?
In Orange County, the Court will consider your case as a domestic violence case if, in the past 5 years,
1. A parent was convicted of domestic violence against the other parent, or
2. Any court has decided that one parent committed domestic violence against the other parent of the children (which means that a court’s previous issuance of a restraining order in your case highly relevant in your custody case).
If the court decides that there was domestic violence in the past five years against a parent or the children, the judge must follow special rules to decide custody of the children.
In particular, pursuant to Family Code Section 3044, if the Court makes such a finding there is a legal presumption that the party who perpetuated the domestic violence should not have sole or joint custody of the parties’ children. Such legal presumption can be overcome and custody awarded to the parent who committed the domestic violence if it is in the best interests of the child, the perpetrator has completed a 52-week batterer’s program, not committed any other domestic violence, and has complied with all other orders of the Court.
The complete text of California Family Code Section 3044 is as follows:
(a) 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 rebutable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic vtiolence 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.
(b) In determining whether the presumption set forth in subdivision (a) has been overcome, the court shall consider all of the following factors:
(1) Whether the perpetrator of domestic violence has demonstrated that giving sole or joint physical or legal custody of a child to the perpetrator is in the best interest of the child. In determining the best interest of the child, the preference for frequent and continuing contact with both parents, as set forth in subdivision (b) of Section 3020, or with the noncustodial parent, as set forth in paragraph (1) of subdivision (a) of Section 3040, may not be used to rebut the presumption, in whole or in part.
(2) Whether the perpetrator has successfully completed a batterer’s treatment program that meets the criteria outlined in subdivision (c) of Section 1203.097 of the Penal Code.
(3) Whether the perpetrator has successfully completed a program of alcohol or drug abuse counseling if the court determines that counseling is appropriate.
(4) Whether the perpetrator has successfully completed a parenting class if the court determines the class to be appropriate.
(5) Whether the perpetrator is on probation or parole, and whether he or she has complied with the terms and conditions of probation or parole.
(6) Whether the perpetrator is restrained by a protective order or restraining order, and whether he or she has complied with its terms and conditions.
(7) Whether the perpetrator of domestic violence has committed any further acts of domestic violence.
(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.
For more information or to schedule a consultation, contact Orange County divorce attorney Gerald Maggio of The Maggio Law Firm, by visiting www.maggiolawfirm.com or calling (949) 553-0304.
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