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When Domestic Violence Affects Custody In California

Posted on: August 19, 2019 by in Child Custody, Divorce, Domestic Violence, Family Law
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If you have a domestic violence case, you might be wondering how it will affect your child custody right if you live in California. Is there a possibility you could receive less child custody because of the charge? That is why you should consult with a Cerritos divorce attorney so that you’re not leaving anything to chance.

It’s The Judge’s discretion 

According to California Courts, it is up to the judge to decide if domestic violence is an issue with the ongoing family case. If it is an issue, there are some rules that the judge must abide by when determining the custody of the child. There are two instances where the judge could treat the case as a domestic violence charge.

The first instance is when you’ve been convicted of a domestic violence charge in the last five years. The second instance is when the court determined that you committed domestic violence against the other parent or the child.

In case the judge determines that it is a domestic violence case, it will be impossible for you to be legally granted joint custody. You might get visitation rights depending on the circumstances of the case. You could be granted custodian rights by the judge if you’re able to prove:

  • That having joint or full custody is in your child’s best interest
  • You’ve successfully completed a 52-week batterer intervention program
  • Comply with the terms of the probation or parole
  • Comply with the rules of the restraining order
  • Successfully completed a court-ordered parenting program
  • Successfully completed a court-ordered substance abuse program

In addition to meeting the above mentioned requirements, you’re expected to refrain from committing future acts of domestic violence.

Your state might not have the presumption of domestic violence built in the statute. This because domestic violence could impact the decision of child custody based on moral presumptions. There are not a lot of judges who will be willing to give custody to a parent who has been violent to the partner or child.

Domestic Violence Offenders Will NOT Get Primary Custody

If there is a history of domestic violence, there will be a “moral presumption” that the abuser should not be given the right to be the primary caregiver of the child. This could also be the case if the violence is not directed towards the child but occurs when the child is present. The court will still be reluctant because of the violence the child is exposed to and might grow up with issues as well.

The domestic violence charge could also have an impact on determining the child custody of victims. A good example is when you’ve been divorced with your spouse for more than two years and you’ve found a new lover. You start living together. Your spouse temper flares and you start getting abused in front of the children. In such a situation, you’re not only a victim but also a parent. Your ex could file a petition to obtain custody of the children if they come to learn of such a predicament. This will be filed on the basis that you’re unable to protect the children from third parties.

Even though domestic violence should never be taken lightly, there are some parents that can fabricate details in order to have an advantage on the child custody hearings. In such a situation, the parent will seek a restraining order because of the domestic violence accusation.

A temporary restraining order will require a much shorter notice given the urgency of the case. The accused might have time to appear in court in order to defend himself or herself. A default order will then be awarded to the parent because the accused party will have failed to respond to the allegations in time.

It doesn’t matter if the state you live in has already adopted the domestic violence presumption, a domestic violence case will definitely affect the child custody dispute. There is a possibility that strong bonds could be formed by the child to the abusive parent as a survival technique. This kind of bond is usually referred to as Stockholm Syndrome which is described as a powerful connection that the oppressed develops for the oppressor.

The negative effects of children witnessing domestic violence are not likely to disappear quickly especially if they’re constantly exposed. According to statistics, children who come from homes where there is domestic abuse are more at risk of health problems when they become adults.

There is a common myth that non-abusive parents can’t lose custody. This is not always true, especially if the accused has a compelling case. The victim might be suffering from post-traumatic stress and might not present themselves well in court. The problem could be compounded when there is no proper legal counsel. This could lead to loss of custody to the abusive parent.

Definition of Domestic Violence in California

According to the laws of California, a person could be accused of domestic violence if he or she acted recklessly or intentionally caused bodily or sexually assaulted the partner. It could also apply in situations where the victim feels that physical harm is imminent. Domestic violence may include:

  • Hitting or striking
  • Threatening
  • Disturbing the peace
  • Destruction of personal property

According to California law, it is presumed that the abuser should not have custody of the children if there is enough evidence to show domestic abuse. Even though it might not interfere with visitation, getting custody is a different ballgame. The accused should take classes on what is presumed to be the root of the problem before thinking about filing for custody. There is no guarantee that the custody will go in their favor even after taking the recommended classes.

False accusations are rare but that doesn’t mean it can’t happen. If you ever find yourself in a predicament, you will need an experienced family attorney to help with your case. You can reach out to the Law Offices of Paul J. Duron if you’re looking for experienced attorneys to help out with your case. Call us today to book an appointment.