Child Custody in California: Domestic Violence Considerations

Domestic Violence and Child Custody

Even though California is a no-fault state for dissolution of marriage, evidence of domestic violence in a marriage can play a major role in decisions regarding the children of the parties.

Domestic Violence Defined

The most obvious forms of domestic violence involve physical abuse. However, domestic violence is an issue that defies a clear-cut definition. One organization, the National Council of Juvenile and Family Court Judges, defines domestic violence as “a dynamic between parents whereby one partner seeks to control the other through the use of abusive patterns of behavior that operate at a variety of levels of emotional, psychological, and physical.” The Council further states that “the presence of this abusive dynamic will always be relevant to the question of what custody or visitation arrangement will serve the best interests of any children shared by the adult parties.”

California Statute: Family Code § 3044

Existing law provides that custody should be granted according to the best interest of the child in a specified order of preference, where preference is first given to granting custody to both parents jointly or to either parent.

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, as defined, against the other party seeking custody of the child or against the child or the child’s siblings within the previous 5 years, is detrimental to the best interest of the child. The presumption does not apply in cases in which both parents are perpetrators of domestic violence.

The statute sets forth the following factors that the court must consider in determining whether the evidence submitted by the perpetrator is sufficient to overcome the presumption:

(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.
(2) Whether the perpetrator has successfully completed a batterer’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) If the perpetrator is on probation or parole, whether he or she is restrained by a protective order granted after a hearing, and whether he or she has complied with its terms and conditions.
(6) Whether the perpetrator of domestic violence has committed any further acts of domestic violence.

Presumption of Detriment to Best Interest of Child

Presumption against Joint Custody

Most states have adopted the position that the presence of domestic violence has relevance in custody determinations. As noted above, California passed laws creating a presumption against awarding sole or joint custody to a parent who has committed domestic violence against the other parent. Unless the presumption is successfully rebutted, an award of custody to the abusing spouse is considered detrimental to the best interests of the children, and custody will not be awarded to that parent.

Evidence that Rebuts the Presumption

It is possible to overcome the presumption against an award of sole or joint custody to those who have committed domestic violence, by presenting evidence such as:

• Successful completion of a batterer’s treatment program
• Successful completion of a drug or alcohol program
• Successful completion of a parenting class
• Successful completion of the terms and conditions of probation or parole
• Compliance with the terms of any protective order or restraining order
• Evidence that the parent has not committed any further acts of domestic violence

Continued Controversy

The law in many states provides that custody should be denied to perpetrators of domestic violence. However, many questions remain. What actions constitute domestic violence? What if both parties have committed domestic violence? What if there was only a single incident of domestic violence? Has actual emotional or psychological harm been done to the children as a result of the violence? Will the children be protected by a denial of custody to the violent parent? What is the impact of children growing up with little contact with one of their parents? Until we answer these and many more questions regarding domestic violence, the issue of domestic violence and custody will remain unsettled.

Conclusion

Domestic violence can have a major impact on custody and visitation awards. While the law recognizes that evidence of domestic violence between the parties must be considered in custody determinations, there continues to be controversy over how to resolve such custody disputes. If the issue of domestic violence has arisen in your case, you need the guidance and assistance of a family law attorney experienced in handling such matters in California.