How Domestic Violence Affects Child Custody in California

Learn how California judges handle custody disputes when there are restraining orders or charges of domestic violence or child abuse.

By , Legal Editor
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Child custody disputes can be difficult enough in normal circumstances, but they're especially fraught when domestic violence or child abuse is part of the picture. California law takes domestic violence very seriously. Whenever one parent has accused the other of abuse, judges must follow strict requirements to consider those accusations and make sure that custody and visitation orders protect the child and the entire family.

What's Considered Domestic Violence in California?

Some abusers—and even their victims—believe that domestic violence only happens when the victim has been physically hurt. But California law defines domestic violence much more broadly. Under the legal definition, domestic violence includes a broad range of abusive, threatening, and controlling behavior toward any of the following individuals:

  • the abuser's current or former spouse
  • anyone who regularly lives or lived with the abuser
  • a person who is or has been in a dating relationship with the abuser, which means that their interactions were frequent and intimate, with the expectation of affection or sexual relations
  • the victim's or abuser's child
  • the other parent of the abuser's child, or
  • anyone else who's closely related to the abuser by blood or marriage.

The types of behavior that are considered abuse are specifically not limited to actual injury or assault. Rather, they include:

  • intentionally or recklessly injuring or trying to injure the victim physically
  • making someone reasonably fear that they or someone else will immediately be seriously injured
  • sexual assault, and
  • any other conduct that could be included in a protective (or restraining) order.

Domestic violence protective orders may cover a long list of abusive behaviors against a victim, such as:

  • stalking
  • threatening
  • harassing
  • destroying property, and
  • disturbing the victim's peace.

Disturbing a victim's peace could include any actions that would harm their mental or emotional state, including isolating the victim from other sources of support, contolling the victim's finances, monitoring communications and movements, interfering with the use of contraception, controlling pregnancy outcomes through coercion, and other ways of interfering with personal liberty.

(Cal. Fam. Code §§ 6203, 6211, 6320 (2024).)

California Policy on Domestic Violence and Child Custody

It's public policy in California that all decisions about child custody must focus first and foremost on the health, safety, and welfare of the kids. Not only do children have a right to be free from abuse themselves, but state law makes it clear that living in a household with any domestic violence is detrimental to a child's welfare. (Cal. Fam. Code § 3020 (2024).)

Beyond these general principles, California law includes a number of specific provisions addressing how judges must deal with custody cases involving domestic violence, child abuse or neglect, and accusations of abuse.

Custody Decisions When There's Abuse or a Restraining Order

Under California's child custody laws, judges must consider a number of relevant circumstances when deciding which custody and visitation arrangements would be in the child's best interests. One of those factors is a parent's history of abuse against any of the following individuals:

  • any child who is related to the parent (including a stepchild) or has been in the parent's care, even temporarily
  • the child's other parent
  • the parent's own parent, or
  • someone who lives with or has been in a dating relationship with the parent.

Judges must also consider the nature of amount of contact a child has had with both parents. But when they do that, they should take into account whether one parent has left the family home because of the other parent's actual or threatened domestic violence.

If there's a protective order in place that affects the parents or child, the judge should normally avoid issuing a custody or visitation order that's inconsistent with the protective order.

(Cal. Fam. Code §§ 3011(a), 3031(a), 3046(a)(2) (2024).)

Can Abusers Ever Get Sole or Joint Custody of Children?

If any court has found that a parent has engaged in domestic violence within the last five years against any of the same abuse victims (as listed above), California law presumes that it's not in the child's best interests for that parent to receive sole or joint physical or legal custody.

The presumption is "rebuttable," which means that the abuser may try to overcome it with evidence showing that having joint or sole custody would actually be best for the child. The judge will also consider whether the abuser:

  • has successfully completed a batterer's treatment program, as well as a parenting class and substance abuse counseling if either or both of those is appropriate
  • is on probation or parole and, if so, has met all the requirements
  • is subject to a restraining order and, if so, has violated that order or the accompanying legal prohibition on having a firearm, or
  • has engaged in any further domestic violence.

The judge may award the abuser joint or sole custody only if all of those factors, on balance, support the state's public policy of protecting children's health, safety, and overall welfare. (Cal. Fam. Code § 3044 (2024).)

How Do Judges Handle Accusations of Abuse in Custody Disputes?

Whenever a custody dispute involves accusations of domestic violence, the judge may require evidence that independently supports those accusations, including reports from law enforcement, child protective services, medical facilities, and public agencies or nonprofit organizations that provide services to sexual assault or domestic violence victims.

California law has specific requirements about investigations into allegations of child abuse, including sexual abuse. While an investigation is going on, the judge may take temporary steps to protect the child.

If a judge finds that a parent has knowingly made false accusations of child abuse or neglect during a custody case, the judge may require that parent to pay the other parent's costs for defending against the allegations.

(Cal. Fam. Code §§ 3011(a)(2)(B), 3027, 3027.1 (2024).)

Temporary Custody Orders in Abuse Cases

California judges may issue temporary custody orders—or make temporary changes to existing orders—without a formal hearing if a parent demonstrates "immediate harm" to the child. Immediate harm includes having a parent who has committed domestic violence or child sexual abuse recently, or as part of an ongoing pattern of behavior.

Also, if more time is needed to decide whether the presumption against custody by an abuser applies (as discussed above), the judge may issue temporary custody orders in the meantime.

(Cal. Fam. Code §§ 3044(g), 3064, 6323 (2024).)

Visitation Restrictions for Abusive Parents

Domestic violence can also affect an abuser's visitation rights. Whenever a custodial parent has gotten a protective order against the noncustodial parent, California law requires judges to decide whether it would be in the child's best interests to suspend, deny, or restrict that parent's visitation with the child. Restricting visitation would mean supervised visits or virtual visits (which may be supervised or unsupervised).

When deciding what type of visitation to allow, the judge must consider the nature of the behavior that led to the protective order, how long it's been since that order was issued, and whether the noncustodial parent has engaged in any further abuse since then.

With supervised visitation, a neutral outsider is present during the visits to watch, listen, and make sure that the child is safe and comfortable. Typically, the court will appoint a professional provider (who's had special training and a background check) to supervise visits. California law does allow parents to suggest someone like a family member or friend to supervise visitation, but the court isn't required to appoint that person. And an untrained supervisor might not be appropriate when it could be dangerous for a child to be the noncustodial parent.

If one parent is staying at a confidential shelter to avoid domestic violence, a judge must take a close look at the circumstances before deciding whether it would be in the child's best interests for the other parent to have in-person visitation. Those circumstances include whether the abusive parent has access to firearms and has violated any protective or restraining orders.

(Cal. Fam. Code § 3100 (2024).)

Can Abusive Parents Lose All Parental Rights?

In cases of extreme child abuse or neglect, a court might terminate the abuser's parental rights. This wouldn't happen as part of a custody case. Instead, it could be the culmination of a separate, lengthy process in juvenile court (known as "dependency proceedings").

However, whenever child abuse accusations are brought up in a custody case, the family law judge may ask the local child welfare agency to conduct an investigation. Depending on the results of that investigation, the agency may then file a dependency petition in juvenile court. (Cal. Fam.Code § 3027(b); Cal. Welf. & Inst. Code §§ 325, 328 (2024).)

During dependency proceedings, abusive or neglectful parents are typically offered many opportunities to show that they're addressing the issue (for instance, by taking classes, undergoing counseling, or participating in other programs known as "reunification services"). As a general rule, parents won't lose their parental rights unless refuse to cooperate or simply fail at the reunification programs.

Termination of parental rights is a drastic step that permanently strips an abusive parent of all rights over the child—including the right to visit or have any say over the child's life. That's why judges usually resort to this step only as a last resort.

Resources and Help With Domestic Violence and Custody

You can ask the court for a protective order (also called a restraining order) if you've been experiencing domestic violence. The California Courts offer a self-help page on domestic violence protective orders, including all the necessary forms and step-by-step instructions. You shouldn't need a lawyer to get a restraining order (especially a temporary one). But if your abuser fights a longer-term protective order at a hearing, you might need help from an attorney to make your case—especially if your abuser has a lawyer.

But when it comes to custody disputes that involve domestic violence, you should do everything possible to get legal help from a qualified family law attorney. This is not a time to go it alone.

If you can't afford a lawyer, there are a number of organizations in California that provide free or low-cost legal services to domestic violence victims. You can search for this help from any of a number of websites and directories, including:

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