How Does Domestic Violence Affect My Child Custody Case?

Posted by: Gerald A. Maggio, Esq.

Top Orange County divorce mediators; California divorce mediatorsBy:  Gerald Maggio, Esq.

It is important to know that the occurrence of domestic violence has a direct effect on any child custody case.  In California, the Court will consider your case to be a “domestic violence case” if the Court finds that a parent committed or was convicted of domestic violence against the other parent (or their child) in the last 5 years.

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 over time, if the perpetrator has completed a 52-week batterer’s treatment program, not committed any other domestic violence, and has complied with any other orders of the Court.  However, by that time, there will generally be a “status quo” of a regular custodial schedule, and part of what the court has to consider in determining what is in the best interests of the child is stability and a regular routine.

Furthermore, if there is a pending or final criminal case for domestic violence against the other parent, there is likely criminal protective orders in place in that case and possibly a family law restraining order also in the custody case that will affect custody and likely shape the ultimate outcome of the custody case.

So, if you are a victim of domestic violence, need a restraining order to protect you, and are seeking a divorce or child custody, you need legal assistance.  Likewise, if you are falsely accused of domestic violence by the other parent in an effort to alienate you from your children and affect your custody case by putting you on the defensive, you definitely need legal assistance to aggressively refute those false accusations.

Here is the entirety of California Family Code Section 3044:

  1. 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 rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence 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.
  2. 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 non custodial parent, as set forth in paragraph (1) of subdivision (a0 of Section 3040, may not be used to rebut the presumption, in whole or in part.
  2. Whether the perpetrator has successfully completed a batter’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.
  1. 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 or the child’s siblings. 
  1. For purposes of this section, the requirement of a finding by the court shall be been convicted within the previous five years, after a trial  or 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 of 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 5 years.
  1. 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.
  2. 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, please contact California Divorce Mediators at (949) 553-0911 or at www.cadivorcemediators.com.

To learn more about the divorce process in California and how mediation can help, please visit our page, “What is Divorce Mediation.”