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The effect of domestic violence in custody proceedings can result in more than just a restraining order against the offending party. The burden of proof for obtaining domestic violence restraining orders in family law court (as opposed to criminal court) is by a “preponderance of the evidence.” This means that a court must only find that domestic violence more likely than not occurred.
A finding of domestic violence in family court can have lasting results for the perpetrator of domestic violence especially in child custody case. A court finding of domestic violence requires the parent to rebut the presumption that awarding that parent him/her custody is not to the best interest of a child.
Under Family Code 3044 (“3044”), a finding of domestic violence against the other parent or the child or the child’s siblings within the previous five years, carries with it a rebuttable presumption that an award of sole or joint physical or legal custody of a child to the abuser is detrimental to the best interest of the child. Thus, a parent can lose custody of their child if the family court makes a finding that he or she has committed domestic violence.
This is because when it comes to child custody, the public policy of the State of California is to ensure the health, safety, and welfare of children and that domestic violence is detrimental to the child’s best interest. Thus, a judge must consider domestic abuse when determining legal and physical custody.
Family law 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 ordering supervised visitation (meaning a third party must supervise all visits between the child and the abusive parent) or banning overnight visits. The court is given wide discretion in custody matters in establishing custody and visitation orders.
Family Code 3044 reads in relevant part as follows:
(c) For purposes of this section, a person has “perpetrated domestic violence” when the person 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 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 and the child’s siblings.
(d) (1) For purposes of this section, the requirement of a finding by the court shall be satisfied by, among other things, and not limited to, evidence that a party seeking custody has been convicted within the previous five years, after a trial or a plea of guilty or no contest, of a 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.
If the family court finds that a parent has perpetrated domestic violence, then the judge will apply a “rebuttable presumption” (a legal assumption that can only be overcome by enough evidence) that the perpetrator should not have sole or joint custody of the child.
It is not always possible to overcome the legal presumption that awarding joint physical or legal custody of a child to the abuser is detrimental to the best interest of the child, but an experienced family law attorney should present factual evidence that the court can consider. The court is required to evaluate all the seven factors in deciding whether the restrained parent has effectively rebutted 3044.
The factors the family court considers are:
- Whether the alleged abuser has demonstrated that giving sole custodyor joint custody of a child to him or her is in the best interest of the child.
- Whether the alleged abuser has successfully completed a batterer’s treatment program that meets the criteria outlined in subdivision (c) of Section 1203.097 of the Penal Code. Even if not ordered, a batterer’s intervention program is almost universally required by family court judges when a litigant is attempting to overcome the Family Code 3044 presumption.
- Whether the alleged abuser has successfully completed an alcohol and chemical dependency programif the court determines that counseling is appropriate.
- Whether the alleged abuser has successfully completed parenting classes if the court determines the classes to be appropriate.
- Whether the alleged abuser is on probation or parole, and whether he or she has complied with the terms and conditions of their probation or parole. This is even more important when the criminal conviction relates to domestic violence.
- Whether the alleged abuser is restrained by a protective order or restraining order, and whether he or she has complied with its terms and conditions.
- Whether the alleged abuser has committed any further acts of domestic violence.
Mitigation of the prior bad conduct(s) of domestic violence is strategically important in presenting an efficient and powerful case to a judge, whether in criminal, family courts or both. For example, domestic violence programs (generally 52 weeks), whether court ordered or not, should be completed, parenting classes, anger management classes, and ongoing therapy are all recommendations that I make to my clients. It is not only beneficial for his/her case but to my client. Taking proactive steps for self-betterment or understanding of one’s actions, are not only good for my client, but for his/her loved ones. If you have any questions, please email me directly at [email protected] or call my office at 310-601-7144. May we all continue to face the ongoing challenges of 2022 working together and hopeful.
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Carina