Domestic Violence

It unfortunate that too often parents use domestic violence as a tactic to gain advantage in child custody cases. It is even worse when attorneys advise clients that criminal charges of domestic violence must be concluded before parents can bring an action in family court so they can see their children. Someone charged with domestic violence is unlikely to find a level playing field in seeking a custody award, as the law presumes such a parent is unsuitable for sole or joint custody. However, nothing in the law stops a parent from having supervised visitations while there is an action pending in civil or criminal court. Supervised visitation may be granted, unless the court finds that there is a risk to a child's health, safety, or welfare and, if the court so finds, it must state its reasons on the record.

Perhaps one parent accuses the other of drinking too much in order to sway the court’s decision. In determining the child’s best interests, trial courts look for the habitual or continual illegal use of controlled substances, the habitual or continual abuse of alcohol, or the habitual or continual abuse of prescribed controlled substances by either parent.

If there is alleged domestic violence against a parent, s/he should agree to supervised visitation while the domestic violence case is pending. Whenever visitation is ordered in a case in which domestic violence is alleged and an emergency protective order, protective order, or other restraining order has been issued, the court’s order must specify the time, day, place, and manner of transfer of the child so as to limit the child’s exposure to potential domestic conflict or violence and to ensure the safety of all family members .

In considering custody or visitation issues, the court is encouraged to make a reasonable effort to ascertain whether any emergency protective order, protective order, or other restraining order is in effect that concerns the parties or the minor children. Additionally, the court is encouraged no to make a custody or visitation order that is not inconsistent with any such order unless it makes both of the following findings:

  1. The custody or visitation order cannot be made consistent with the emergency protective order, protective order, or other restraining order (Family Code Section 3031(a)(1); and
  2. The custody or visitation order is in the child’s best interests (Family Code Section 3031(a)(2).

When making an order for custody or visitation in a case where domestic violence is alleged and an emergency or protective order, protective order, or other restraining order has been issued, the court must consider:

  1. whether the child’s best interests, based upon the circumstances of the case, require that any custody or visitation arrangement be limited to situations where a third person is present; or
  2. whether custody or visitation shall be suspended or denied.

    The requirements for a trial court’s finding that the custody claimant has perpetrated domestic violence and thus triggers statute’s rebuttable presumptions are:

    1. conviction
    2. a finding of domestic violence in another proceeding;
    3. an admission by the alleged perpetrator; and
    4. (4) a predicate finding not solely bsed on a child custody evaluator’s conclusions.

    Thus, if one accused of domestic violence cannot overcome the presumption, Family Code Section 3044 is not of itself an impediment to awarding him or her parenting time short of true joint custody.

Family Code §§3020(a), 3020(b), 3055, 3011 all agree that the primary concern is for a child’s health, safety, and welfare, that child abuse and domestic violence are detrimental, and that appropriate custody/visitation awards must take into consideration the codified policies to ensure that children have frequent and continuing contact with both parents. Where the policies conflict - in cases of domestic violence, for example - a custody or visitation order shall be made in a manner that ensures the child’s health, safety, and welfare and the safety of family members. A parent who is accused of domestic violence is encouraged to accept supervised visitations until domestic violence issues are resolved.

As a prerequisite to considering allegations of physical abuse, the court may require “substantial independent corroboration," including, but not limited to, written reports by law enforcement agencies, child protective services or other welfare agencies, courts, medical facilities, or other public agencies providing services to victims of sexual assault or domestic violence. Family Code §3011 (b)(3). Thus, the court must determine the veracity of such allegations to ensure that it is acting in the best interests of the child. There are some exceptions that can restrict custody, which include a conviction of child abuse and registration as a sex offender.

Where allegations against one parent, under Family Code §3011(b), have been brought to the attention of the court and the court awards sole or joint custody to that parent, the court must state its reasons in writing or on the record. Family Code Section 3011(e)(1). (The court's written reasons for awarding custody to the father despite his alleged alcohol abuse fulfilled statutory requirement. A.G. v. C.S., 246 CalApp. 4d 1269 (2016).)

To avoid false child abuse/neglect accusations, three special statutes are directed at curbing such tactics: (1) sanctions; (2) supervised visitation or limited custody/visitation for false child sexual abuse allegations if the other parent's intent was to interfer with the other parent’s lawful contact with the child by creating a false report (Family Code Section 3027.5(b); and (3) mandatory reconsideration of custody order.

Unfortunately, even experienced attorneys are sometimes afraid to ask for at least visitation while an alleged domestic violence action is pending, because of the rebuttable presumptions against awarding custody to an alleged domestic violence perpetrator. But what most people don’t realize is that a domestic violence finding triggers these presumptions, not issuance of a restraining order. A presumption is always rebuttable, even if he or she was criminally convicted of domestic violence. F.T v. L.J., 194 Cal.App. 4th (2011). If the court does not intend to make a finding that will trigger the Family Code Section 3044 presumption, it cannot find an alleged perpetrator engaged in “domestic violence” sufficient to support a DVPA protective order. S.M v. E.P., 184 Cal.App. 4th 1249 (2010); In Re Marriage of Fajota, 230 Cal.App. 4th 1487 (2014).

An accused parent, as the party bearing the burden of persuasion under a 3044 presumption, must be given an opportunity for meaningful rebuttal. He or she must have the opportunity to introduce evidence pertinent to the child’s best interests. And before reaching any final custody decision, the court must carefully weigh all of the relevant factors required by Family Code §3044. If a domestic violence perpetrator cannot overcome the presumption, 3044 is not itself an impediment to awarding him or her some timesharing short of “true” joint custody (Celia S. v. Hugo H., supra.) Even inmates retain the right of reasonable visitation with their children. Visitation between minors and their incarcerated parents cannot be absolutely banned without a finding of detriment. Otherwise, lengthy separation of an incarcerated parent from a child would impermissibly abridge the rights between parent and child and amount to an unconstitutional denial of rights of association and privacy.

Even in aggravated cases, when it is possible to serve the child’s best interests by restricting visitation privileges or making them conditional, rather than completely withholding visitation, the court should opt for such an order. Denial of parental visitation rights should only be a last resort.

If you are suffering due to domestic violence or your child custody rights have been denied through false allegations of domestic violence, you need a competent attorney who knows the law and is prepared to demand that which is in the best interests of your child. Feel free to contact Jos Family Law at (714) 733-7066 or jos@josfamilylaw.com.

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