When Domestic Violence Affects Child Custody and Visitation
California recently passed a new state law (Family Code Section 3044) that details how courts are to handle child custody when there are domestic violence claims between parents.
The court can limit custody if it finds that one parent perpetrated violence on the other parent any time in the previous five years. Shared physical or legal custody may not be granted. Instead, the parent who was the victim of the domestic violence will receive sole custody, both physical and legal, of children.
The law sides with the parent who is the victim. There must be sufficient evidence to support domestic violence claims and the law assumes there is if a police report has been filed even if the offending parent was not charged.
California law does allow perpetrators of domestic violence to rebut the legal presumption they should not be awarded custody. The reality is that it is challenging to get a judge to decide the presumption should not be applied to you. The judge is required to consider information that shows the perpetrator:
- Should have shared custody because it is in the child’s best interest.
- Completed a treatment program for domestic violence perpetrators.
- Completed a substance abuse treatment or counseling program.
- Completed a parenting class.
- Complied with all restraining orders.
- Was not involved in other domestic violence incidents. The statute does not apply in situations in which both parents engaged in domestic violence.
Parental domestic violence is often seen as a situation that only affects the relationship between parents. However, this law makes the obvious connection between parental domestic violence and child custody. And the law clearly sides with the victim. Other laws offer additional protection. But parents accused of engaging in domestic violence might want to fight allegations if they want to maintain or get any type of custody of their children. Parents who are victims are pretty much guaranteed to be awarded sole custody of children as long as the domestic violence can be substantiated.
Restraining orders in cases of domestic violence have additional implications. California law was amended so a victim of domestic violence can get court permission to secretly record conversations they have with the other partner who is the perpetrator of domestic violence. It is illegal to engage in this type of recording without a court order. And remember that it is also illegal to have a firearm if there is a restraining order against you. If you are caught, you can be charged with a felony-misdemeanor.