Implications of Domestic Violence Accusations In Custody Actions / by Cassandra Hearn

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Domestic violence is a terrible experience for anyone involved, but it is an especially scarring experience for children. Children who have witnessed or been victims of domestic violence can suffer emotional problems for the rest of their lives. The California legislature recognizes the seriousness of domestic violence and has adopted laws to try to protect victims and punish the abusers. When there is a custody battle that involves accusations of domestic violence from one or either of the parents, there are particular considerations that a court must take into account when making a final custody or visitation order.

When crafting a final order for custody, a judge must consider what is in the child’s best interest. The California family code provides a particular list of factors for what a judge should contemplate to come to that conclusion. Included in that list is the fact that the child’s “health, safety, and welfare” must be the court’s primary concern. A court must also consider whether a parent has a history of abuse against a list of people including any child that the alleged abuser was or is related to by blood or marriage, the other parent, or a family member of the parent seeking custody. In the event the judge finds that a parent has been convicted of a domestic violence offense in the last five years, the judge must apply a rebuttable presumption that the abuser should not have sole or even joint legal custody of the child. The convicted parent may rebut this presumption by presenting his or her own evidence, such as whether that parent has successfully completed batterer’s intervention, whether the parent is on parole and is complying with all requirements, and whether the parent has committed additional acts of domestic violence since the conviction. Moreover, if there is a domestic violence restraining order in effect, the judge must also take that into account.

Unlike a criminal case involving domestic violence, a parent alleging abuse does not have to prove that the abuse happened beyond a reasonable doubt. Accordingly, in custody and divorce actions, it is easier for a victim to meet the burden of proof to show a judge that he or she was abused.

Clearly, the implications of domestic violence allegations in a child custody dispute are severe. If a court finds that a parent has committed domestic violence, then that parent’s visitation and custody rights can be severely curtailed unless and until a judge is convinced that the parent does not pose any danger to the children.

We have extensive experience in helping our clients in cases involving domestic violence. Contact us today at 619-800-0384 for a consultation to talk about your case and what we can do to help you