Does domestic violence matter when a family law judge is considering a case for California child custody? Does it make a difference in the judge’s order for legal or physical custody or for the amount of visitation that a parent will receive? This article will address these frequently asked questions.
If there is a finding of domestic violence, and the parent who was the victim seeks and receives a restraining order, does that mean that the restrained parent must stay away from the other
one? Does this affect custody of the children? In most cases, the answer is yes. A finding of domestic violence by the Family Court can have a significant effect on a child custody case for years.
If the Court finds that the parent seeking custody of a child (joint or sole) enacted domestic violence against the other parent or the child or the child’s brothers or sisters within the
last five years, there is a presumption that the parent who committed the acts of domestic violence should not receive joint or sole legal or physical custody of the child.
California Family Code 3044 defines what it means to have “perpetrated domestic violence” in Sections (c) through (f). In summary, a person perpetrated domestic violence if they are found by the court to have purposefully or recklessly caused or attempted to cause bodily injury, sexual assault, if they have threatened, hit, harassed, or destroyed personal property or disturbed the peace of another. For purposes of child custody cases, the requirement of a finding by the court is satisfied by a number of things, including: evidence that a party seeking custody has been convicted in the past five years of any crime that comes within the definition of domestic violence (as defined by Section 6211) and of abuse (as contained in Section 6203). Court findings may not be based solely on child custody evaluator conclusions or the recommendation of the Family Court Services staff. Other relevant, admissible evidence submitted by the parties must be considered. When a party in a custody or restraining order proceeding alleges that the other party has perpetrated domestic violence, the court must inform the parties of the existence of this section and provide them with a copy prior to any mediation on the case.
Presumption places a greater burden on the parent who committed domestic violence to show that they should get some form of custody of the child, but it does not replace the best interest standard when the judge rules on custody.