Domestic violence can take many forms, all of which can be extremely harmful to you and your children. You might experience physical violence, intimidation or threats, mental and emotional abuse, or even financial abuse, which involves your spouse or partner withholding money from you and controlling your finances to an abusive degree. No matter what type of domestic violence or abuse you experience, it might impact a child custody case when you decide to divorce or live separately from your abuser.
If you face a child custody case that involves domestic violence, it is imperative to seek assistance from an experienced California child custody attorney. This is true whether you are the victim of domestic abuse or you have been falsely accused of violence.
Domestic Violence in California
Many people fail to recognize when they experienced domestic violence, as this type of conduct does not always result in physical injuries and a trip to the emergency room. In California, domestic violence can include any of the following against a household member, romantic partner, or family member:
- Recklessly or purposely causing or attempting to cause physical injuries
- Causing reasonable fear of immediate bodily injury
- Sexual assault
- Ongoing threats
- Any other conduct that might warrant a protective order being issued by the court
When any of the above conduct happens involving people with certain relationships, it is considered to be domestic violence under the law. Those relationships include:
- Current spouses or romantic partners
- Former spouses or romantic partners
- People who cohabitate or cohabitated regularly
- People who share a child
- Anyone related by blood or marriage
If you believe that you were the victim of domestic violence, take steps to protect yourself by calling a family law attorney who can help you obtain protective orders if needed. Your attorney can also help you initiate a divorce case (if you are married) and address the matter of child custody if you share children with your abuser.
Child Custody Orders
When two parents divorce or decide to live separately, they must decide how they will divide child custody, which involves both physical custody (the time you spend with your child) and legal custody (your authority to make important decisions for your child’s life). Parents might share joint custody, or one parent might be awarded sole custody.
Some parents might be able to agree on a custody arrangement out of court, which gives them more control over the situation. However, if your child’s other parent engaged in domestic violence, you are likely concerned for your child’s safety and well-being if they have physical custody rights. In these cases, it is often necessary to take the matter to court so the judge can make a custody determination.
How Courts Make Custody Determinations
California law requires courts to consider the best interests of the child when making custody decisions. While it is often considered valuable for children to maintain relationships with both parents, courts also heavily weigh how a custody arrangement will impact a child’s safety, welfare, and physical and mental health. The law considers domestic violence in the home to be detrimental to a child’s health and well-being, and any allegations of violence will be considered as part of a custody decision.
Courts not only consider domestic violence against the child themselves, but also against:
- Another child of the parent or who the parent cares for, even temporarily
- The child’s other parent
- A current spouse, dating partner, roommate, or another family member of the abuser
Judges will look for evidence to corroborate allegations of abuse, including police reports, criminal case records, child protective services reports, medical records, protective orders, and more.
If the judge determines that a parent engaged in domestic violence or abuse within the past five years, there is a rebuttable presumption that the abusive parent should not share custody rights. The parent accused of domestic violence can rebut this presumption by presenting evidence of one or more of the following:
- They successfully completed a course of batterer’s treatment, anger management, substance abuse treatment, parenting classes, or another program ordered by the court
- They have been in full compliance with any orders from criminal court, including terms of probation or parole, or a protective order
- The parent has not engaged in any further acts of domestic violence
- It is otherwise in the child’s best interests for that parent to have custody rights
If the alleged abuser successfully rebuts the presumption that they should not have custody rights, the judge has the discretion to award custody – or at least visitation – rights to that parent.
Even if a parent does not have shared custody, the court will still grant that parent reasonable rights to visitation as long as it does not go against the child’s best interests. If there is a concern about exposure to domestic violence, the court can order visits to be supervised. This means that another designated adult will have to be present during all visits so long as the court deems it necessary, and the child will likely not have any overnight visits with that parent. Supervised visitation might even be an option if there is a protective order against the parent.
Termination of Parental Rights
In the event of extreme abuse, the state might open its own case to terminate the parent’s rights. If the court finds that their parental rights should be terminated, they will lose all chances of any physical custody, legal custody, or visitation. In this situation, the parental rights cannot be regained in the future, and this is reserved for cases involving particularly cruel treatment, neglect, or harm to the child.
Help from a Child Custody Lawyer
Child custody cases involving domestic abuse are very serious matters, and there is a lot at stake. Whether you are a parent trying to protect your child, or you are a parent trying to fight for fair custody rights, you need the help of a highly experienced California child custody lawyer who handles cases involving domestic violence.