Domestic violence can impact child custody in a variety of ways in the state of California. The following article highlights California custody laws. Here’s how domestic violence affects child custody in California.
Domestic Violence and Child Custody
Domestic violence law in California states that abuse is:
- Sexual assault
- Physically hurting or trying to hurt someone intentionally or recklessly
- Threatening another party to a point of reasonable fear
- Behavior such as harassing or stalking someone
These actions are considered domestic abuse when committed against
- Current and former spouses
- People who have children together
- People who are related by blood or marriage
- People who are or have been dating or are engaged
- People who live together or formerly lived together on a regular basis
The impacts of domestic abuse can be mental, emotional, physical, and financial.
Considering the Child’s Best Interests
The child’s safety, mental health, and physical health are all essential factors that are considered in child custody cases. If the court finds that a parent has acted violently toward another parent, child, or sibling in the previous five years the judge applies a “rebuttable presumption”, which results in the abusive party lacking sole or joint custody.
In order for a supposed perpetrator to overcome “rebuttable presumption” the following criteria has to be met:
- The perpetrator proves that having custody is in the child’s best interest
- The perpetrator has completed parenting classes, rehabilitation, etc.
- Perpetrator has not committed any further acts of domestic violence
- Perpetrator has complied with all restraining and protective orders
- Perpetrator has complied with all parole or probation requirements
How Domestic Violence Impacts Visitation
The child’s best interest takes priority and determines visiting rights. It is not in a child’s best interest to be exposed to any form of domestic abuse, thus supervised visitation (third party monitors visitation) or overnight visitation may be banned. If a protective order is in place, visitation rights can be suspended or visitation can be outright denied.
Proving domestic violence in a child custody case
Domestic violence can have a major impact on the outcome of a child custody case. There are a specific set of laws that deal with custody and visitation rights in child custody cases that involve domestic violence.
In order for the judge to proceed with a domestic violence case, domestic violence must be proved. Photographs, witness statements, text messages, phone call recordings, and other sources of physical evidence may prove useful in convincing the judge that domestic violence is a factor to consider.
The common reasons for a judge to treat a case as a domestic violence case are:
- A parent was convicted of domestic violence against the other parent in the past five years
- Any court has decided that 1 parent committed domestic violence against the other parent or the children.
If a judge decides that your case should be treated as a domestic violence case, then the judge cannot grant joint or sole custody to the perpetrator of the domestic abuse. However, the perpetrator may be granted visitation rights.
Cause for Restraining Order Against a Non-custodial Parent in California
A restraining order against the perpetrator of domestic violence may be in the best interest of the child. Maximizing the mental health and safety of the child and custodial parent is in the best interest of all involved parties. If a non-custodial parent is engaging in behaviors such as harassment, stalking, threat making, etc, the best course of action would be to serve them with a restraining order.
How to Explain Domestic Violence to a Child
Domestic violence can have several negative impacts on a child including neglect and abuse. Explaining domestic violence to a child can be very difficult since indirect and direct abuse both take severe tolls on a child. The emotional and psychological stress of children who are indirectly impacted by domestic abuse can match the emotional and psychological stress of those directly abused. In many cases, mental health professionals are the best fit to take on such a task. In cases where access to such resources is scarce, the first step is to remove the child from a domestically violent environment. Any attempt at an explanation should highlight that clear mistreatment was occurring and that the child should not harbor any sort of guilt for the situation at hand. Domestic violence can affect child custody.
How does witnessing domestic violence affect a child?
Witnessing domestic violence can result in severe emotional and psychological stress in a child. PTSD, anxiety, depression are all mental illnesses that can arise as a result of the adversity caused by domestic violence in a household.
What happens to custody if domestic violence charges are dismissed?
Visitation rights may become more lenient and the former convicted party may be able to appeal the judge’s former ruling. This can result in a change to the former joint or sole custody ruling.
Is child abuse domestic violence?
Child abuse can be a form of domestic violence if the perpetrator and victim reside in the same residence or share family ties.
Can a dismissed case of domestic violence be used in a custody case?
It may be used by the prosecution as a tool to defend the best interests of the child, but it is up to the judge to consider the allegations and former convictions of abuse.
Free Consultation with a California Domestic Violence Attorney
If you or a loved one is curious about how domestic violence affects child custody in California, contact us. We’ll get you in touch with the most qualified lawyer for your unique legal matter. Get your free consultation with one of our California Domestic Violence Attorneys today!