How Domestic Violence Affects Child Custody in California

Domestic abuse can assume any number of forms, including physical, mental, emotional, and even economic abuse (where one partner controls all the finances). Regardless of the form domestic abuse takes, it always leaves scars on the victims, and it can even affect the way courts make decisions about child custody.

This article will explain what domestic violence is and how it affects child custody. If you have any questions after you read this article, consult with a family law attorney for advice.

Domestic Violence Overview

Sadly, it's all too common for victims of domestic abuse to think they haven't really been abused unless they were physically harmed. Often, people who don't think they've been victimized won't access the help and support they need. That's why it's so important to understand what domestic violence means in California. It's defined as:

• intentionally or recklessly causing or trying to cause bodily injury
• sexual assault
• making other people feel reasonably afraid that they or someone else are in danger of immediate bodily injury, and
• any other behavior that could cause a court to issue a domestic protective order, including harassment, unwanted telephone calls, stalking, threats, and physical assault.

All that conduct is considered domestic violence when it's committed against the following people:

• current and former spouses
• people who live together or formerly lived together on a regular basis
• people who are related by blood or marriage
• people who have children together
• children, and
• people who are or have been dating or engaged.

Dating relationships are frequent, intimate social interactions. Their primary attribute is an expectation of affection or sexual contact, without any financial considerations, from the other person.

If you're a victim of domestic violence, you can go to court and ask for a domestic violence restraining order. To access the forms and information you'll need, see this page from the California Courts.

Community Resources

California has a large number of organizations dedicated to helping victims of domestic violence. The California Partnership to End Domestic Violence maintains an alphabetical listing of domestic violence hotlines and nonprofits. In addition, a number of groups operate independently throughout the state and offer direct help like shelter and counseling. Examples include A Better Way (Victorville), Interval House (Los Angeles and Orange Counties), and A Safe Place (the Bay Area).

Finally, victims can call the National Domestic Violence Hotline at 1-800799-7233. It's available 24 hours a day, seven days a week.

Domestic Violence and Child Custody

Custody can be joint (shared) or sole (awarded to one primary parent). There are two types of custody: legal and physical. Legal custody is a parent's right to help make major decisions about a child's life, like where the child should go to school or whether the child should undergo medical treatment. Physical custody refers to where the child lives and who provides basic care like bathing and feeding.

When it comes to child custody, the California legislature's public policy is to ensure the health, safety, and welfare of children. According to the legislature, it is detrimental to a child if domestic violence or abuse is perpetrated in the child's home. The legislature's policy is also that all court orders have to be made in a manner that ensures the safety of the child and the child's family members. Thus, California custody law requires judges to take domestic abuse into account when determining legal and physical custody.

Judges are required to determine the best interests of a child and what will best promote a child's health and welfare when deciding which parent should have custody. (For more information about how courts generally make these decisions, see Child Custody in California: Best Interests of the Child, by Susan Bishop.) Courts must also consider any history of abuse by a parent against any of the following people:

• any child to whom the abusive parent is related by blood or marriage, no matter how temporary
• any child with whom the abusive parent has had a caretaking relationship, no matter how temporary
• the other parent, and
• a parent, current spouse, fiancé or fiancée, girlfriend or boyfriend in a dating relationship, or roommate of the parent or person seeking custody.

When a judge considers allegations of abuse in a custody case, the court can look at evidence that independently corroborates (substantiates) the accusations, such as reports from law enforcement, records from child protective services, social welfare agencies and medical facilities, other court orders, and reports from other public agencies or nonprofit organizations.

If the court finds that an abusive parent has perpetrated domestic violence against the other parent, the child, or the child's siblings within the last five years, then the judge has to apply a "rebuttable presumption" (a legal assumption that can only be overcome by enough evidence) that the other parent shouldn't have sole or joint custody. The court has to look at the following factors to see if an abusive parent can overcome the rebuttable presumption:

• whether the perpetrator proves that it's in the child's best interests for the perpetrator to have custody
• whether, if ordered to do so, the perpetrator has successfully completed batterer's treatment, alcohol and chemical dependency programming, and parenting classes
• whether the perpetrator is on probation or parole and, if so, whether the perpetrator has complied with all the requirements
• whether the perpetrator is restrained by any protective orders and, if so, whether the perpetrator has complied with them, and
• whether the perpetrator has committed any further acts of domestic violence.

Impact on Visitation

Judges are required to grant reasonable visitation rights to parents unless visitation would not be in the child's best interests. It is not in a child's best interests to be exposed to domestic violence, so the court can protect the child by, for example, ordering supervised visitation (meaning a third party must supervise all visits between the child and the abusive parent) or banning overnight visits.

If a protective order has been issued, the court may grant visitation with conditions (like supervision by a third party) or may suspend or deny visitation entirely.

Other Proceedings

If a victim pursues an emergency protective order, evidence of domestic violence can be used as the basis for atemporary award of custody to the victim. The court can also set up supervised visitation. Later, if a custody case is opened, California law encourages the judge not to make a permanent order that is inconsistent with the emergency protective order.

If the court becomes concerned about a child's safety at any time during a custody case, the judge can step in and take whatever actions he or she deems appropriate to protect the child until an investigation can be completed.

In cases where abuse is extreme, it is possible for a parent's rights to be terminated. This means that the state opens a brand new case and an abusive parent loses all rights to both the physical and legal custody of a child. This only happens when a parent has neglected or treated a child very cruelly. Parents rarely lose their rights to a child, but when they do, it's permanent and the rights can never be regained.