If you've ever been a victim of domestic violence, you know it's about more than physical injury. A key component of domestic abuse is exerting control over the victim—controlling the finances, separating her or him from other support systems, and often, threatening harm to children or pets if the victim tries to leave. Many California domestic violence victims hesitate to separate from or divorce an abusive partner because they fear he will get custody of their children. A common tactic of abusers is to threaten to make their victims look bad or crazy in court in order to accomplish this very result.
But knowledge, as they say, is power, and by knowing California law regarding domestic violence and child custody, victims of abuse can take back some of the power their abuser is trying to steal.
The effect of domestic abuse on child custody is governed by California Family Code Section 3044. This section states that if a court finds that a party seeking custody of a child has committed domestic violence against the other party, against the child, or one of the child's siblings within the previous five years, there is a rebuttable presumption that it is not in the best interests of the child for the abusive party to have sole or joint legal or physical custody.
Domestic violence can be physical, sexual, or even verbal. It includes striking, kicking, or throwing things the victim, pulling her hair, pushing or shoving her, following, or harassing her, threatening to do any of those things, or taking other actions that put her in fear for her safety. A conviction of domestic violence or another court order finding that domestic violence has taken place will cause a court to make a finding of domestic violence in a custody matter. However, examining all the other evidence in the custody case may also lead a court to make a finding of domestic violence.
Even if a court determines to its satisfaction that domestic violence has taken place, that doesn't mean the abusive party will never see the child. Depending on the circumstances, parenting time (visitation) visitation may be granted.
The court only presumes that it's detrimental to a child's best interests for a perpetrator of domestic abuse to have sole or joint custody. The abuser can rebut this presumption: he or she must prove that the majority of the evidence shows it is in the child's best interests for him or her to have custody.
What does the court look at to see if the presumption has been rebutted, and a perpetrator can be granted custody? The court must consider whether, in light of all circumstances, such an arrangement would be best for the child. The court examines whether the perpetrator has committed any other domestic violence and whether he or she has completed a 52-week batterer's treatment program as set forth in the California penal code. If the court has ordered drug or alcohol abuse counseling, or parenting classes, the perpetrator should have completed those as well. And if the perpetrator was on probation or parole, or had a protective or restraining order against him or her, all terms of probation, parole, or the order must have been followed.
In summary, California law strives to protect children and prevent perpetrators of domestic violence from having custody, but in order for a court to do the right thing, it must have the right information before it. Having a strong advocate in your corner makes a huge difference, both to the outcome and to your own feeling of well-being during the process.
To learn more about how the experienced San Diego family law attorneys of Shaffer & Associates can help you protect yourself and your child, contact Shaffer & Associates online or call (619) 595-3167 today to schedule a free consultation.