California courts make all child custody decisions with a child’s best interests as their highest priority. Not only is violence against children unconscionable and never tolerated or overlooked by family courts in California, but children who witness domestic violence from one parent against the other or against a sibling, also suffer a form of abuse. Exposing children to situations of domestic violence within a child’s home is a form of child abuse. For victims of domestic violence who are seeking a divorce with a child custody decision, it’s important to know how domestic violence impacts a child custody case in California.
What Does the Court Consider as “Domestic Violence” in Child Custody Cases?
When a court finds that a parent in a custody case has committed domestic violence the term could refer to any of the following actions:
- Caused or attempted to cause bodily injury to another within the home
- Committed sexual assault
- Threatened, harassed, or destroyed the other spouse’s personal property
- Willfully disturbed the peace of another or placed another in reasonable apprehension of imminent violence against them
It is not in a child’s best interests to reside with parents who perpetrate any form of domestic violence.
Determining That a History of Domestic Violence Exists
Before a judge takes a history of domestic violence in a family into consideration when deciding child custody and parenting time for divorced or non-married parents, they first must determine that domestic violence exists in the case. To make this determination, a judge considers the following:
- Was one parent convicted of domestic violence against the other or a child’s sibling within the last five years or did they plead guilty or no contest to the charges?
- Has a court decided that a parent in the case committed domestic violence against the other or against the children?
- Did a court grant a restraining order against a parent in a custody case due to abuse or threatening behavior?
Special laws (3034) apply in California child custody cases once a judge determines that one parent has committed domestic abuse against the other, against a child, or against a child’s sibling. The judge must rule within the guidelines of these special laws which specify that awarding sole or shared custody to a parent who commits domestic abuse is not in the best interests of a child. This legal presumption is rebuttable—meaning the accused parent may defend themselves in court by showing evidence demonstrating by a preponderance of the evidence that the accusations are false or that continued close contact with the parent is in the child’s best interests.
What Types of Evidence Can a Parent Use in Child Custody Cases in Which Domestic Violence Plays a Role?
Although family courts in California presume that awarding sole or joint custody to a parent with a known history of domestic violence is not in a child’s best interests, the court hears any and all testimony and considers any relevant evidence when making a custody decision including any of the following:
- Whether or not the parent has successfully completed an alcohol or drug treatment program
- Whether or not the parent successfully completed a treatment and counseling program for batterers
- If the parent successfully completed an appropriate parenting class
The court may also consider evidence such as a parent’s willingness or unwillingness to abide by parole terms and restraining orders.
If a judge overturns the presumptive decision that placing a child into sole or joint custody with a parent with a prior domestic abuse conviction or no-contest plea, they must explain their reasons for overturning the presumption with specific findings.
Has Domestic Violence Occurred in Your Home?
If there’s been domestic violence within your home and the violent parent has a prior conviction or entered a plea of guilty or no contest, it’s unlikely that the court will decide that sole or shared custody with the offender is in the child’s best interests; however, it’s essential that both parents in this situation retain experienced legal counsel.
