How Domestic Violence Affects Child Custody in California

Hossein Berenji, Dec 06, 2020

A common reason for someone seeking a divorce in California is domestic violence. The California court system handles thousands of cases involving domestic violence each year.

If you are being abused or your child is being abused, call the police and get help immediately to stop the abuse. After p safety for yourself and your child, seek legal assistance from an experienced divorce lawyer. A divorce attorney can help you obtain custody of your child and work to protect your family from domestic violence.

How Does California Define Domestic Violence?

Domestic violence is defined in California Penal Code §13700 as abuse committed against an intimate partner. Intimate partners can include current and former:

  • Spouses
  • Registered domestic partners
  • Fiancé
  • Cohabitant (life-in romantic partner)
  • Dating partner

An intimate partner includes a person with whom the accused abuser has a child. In addition to the list in the Penal Code, the California Family Code has a long list of individuals who could be victims of domestic violence. The list in the Family Code includes children, parents, siblings, aunts, uncles, nephews, nieces, and grandparents.

Domestic violence can include physical injury and sexual assault. Domestic violence also includes making a person fear that they are in danger or that someone else is in danger. Other forms of domestic violence include, but might not be limited to, slaking, harassment, emotional abuse, financial abuse, isolation, and threats.

How Do California Courts Determine Child Custody?

There are two types of child custody the courts grant in California.

Physical custody refers to which parent has primary physical control of the child. In other words, the primary custodial parent is the parent the child lives with predominantly. The parent with physical custody cares for the child’s day-to-day needs, such as bathing, eating, and sleeping.

Legal custody refers to which parent has the legal authority to make decisions that impact the child’s life. Legal custody allows a parent to make decisions for the child related to the child’s education, medical care, extra-curricular activities, and religious upbringing.

Courts tend to favor joint custody arrangements when possible. A child is believed to benefit from having both parents play an active role in the child’s life. Therefore, the courts encourage parents to work together to develop a parenting plan that allows the child to have a close relationship with each parent.

However, the court may also grant sole custody. Sole custody gives one parent full physical and legal custody of the child. The other parent has no right to make decisions for the child. The non-custodial parent may retain scheduled visitation rights and parenting time with the child.

Judges make child custody decisions based on the best interests of the child. Section 3011 of the California Family Code outlines factors the judge must consider when determining a child’s best interest. One of those factors includes a history of abuse by a parent.

How Do Domestic Violence Allegations Impact Child Custody in California?

It is unlikely that a person convicted of domestic abuse will receive child custody. However, a conviction of domestic abuse is not necessary to deny custody based on this reason.

California Family Code §3044 states that there is a “rebuttable presumption” that awarding custody to a person who has committed domestic violence within the past five years is detrimental to the child’s best interest. Therefore, the judge would conclude that it is not in the best interest of the child to award custody to the abuser.

The parent accused of domestic violence can present evidence with the help of a domestic violence attorney to overcome the presumption that they should not be granted custody of their child. However, it is a high bar for a person to meet to convince a judge that awarding custody to the perpetrator of domestic violence is in the child’s best interest.

Effects on Visitation

Domestic violence also impacts visitation. The courts grant reasonable visitation to non-custodial parents unless vitiation is not in the child’s best interest. It is never in the child’s best interest to expose the child to domestic violence.

Therefore, the judge might order supervised visitation. During supervised visitation, a third party must always supervise the visitation between the parent and child.

The judge could ban overnight visits or visits away from home. In severe domestic violence cases, a judge might suspend or deny visitation rights to the non-custodial parent.

Domestic violence allegations significantly impact child custody cases in California. The mere suggestion that a parent is abusive could result in an investigation and prolong legal proceedings.

A parent could lose all custody rights if they are accused of domestic violence. Therefore, it is always best to seek legal advice from an experienced family law attorney as soon as possible.