Domestic Violence and Custody

Child custody decisions give a judge discretion to determine what the bests interests of the child in question.  This discretion is broad and is based on many types of factors in determining how custody will be divided between the parents.  If you are experiencing a custody dispute against someone who has a history of domestic violence, you should speak to an attorney regarding how to best ensure that the best interests of your child are taken into account when a judge decides how custody should be shared.  

In California, domestic violence is defined as:

  • Causing or trying to cause bodily injury either intentionally or recklessly;
  • Sexual assault;
  • Causing another to feel reasonably afraid that they or a third party are in danger of immediate bodily injury; or
  • Any other behavior that could cause a court to issue a domestic protective order.

In terms of the relevance of a history of abuse, a judge in California will consider past abuse by either parent against any of the following:

  1. Any child related to that parent in any way;
  2. Any child the parent has cared for;
  3. The other parent;
  4. A parent, the parent’s current spouse or fiance or significant other;
  5. A roommate of the parent; or
  6. Whoever the person is seeking custody.

There are certain types of evidence a judge will consider when evaluating a claim of domestic violence, including:

  1. Police reports;
  2. Child protective services reports;
  3. Other court orders; and
  4. Reports from public agencies or non-profits.

In the event that the court does find that one parent has perpetrated domestic violence within the last five years, then a “rebuttable presumption” applies that the perpetrator parent should not have sole or joint custody.  A rebuttable presumption is a legal assumption that only evidence can overcome.  After a judge has applied a rebuttable presumption, evidence to overcome that presumption will be evaluated by the judge.  There are several factors that a judge will evaluate to determine whether the abusive parent can overcome the rebuttable presumption:

  1. Did the perpetrator prove that having custody would be in the child’s best interests?
  2. Did the perpetrator successfully complete any court ordered treatment such as alcohol and chemical dependency treatment, batterer’s therapy, or parenting classes?
  3. Has the perpetrator been compliant with all requirements of any probation or parole?
  4. Has the perpetrator complied with all protective orders?
  5. Has the perpetrator committed any further acts of domestic violence?

The issue of child custody is one of the most important decisions you as a parent or guardian will have to deal with.  It sets the tone for your access to your child and for the extent of your involvement with the child’s other parent or guardian.  The depth of this situation makes it so important for you to ensure that the custody order entered in your case is most reflective of the needs of your child based on how capable both parents are to care for the child and provide a safe, stable, exemplary home for the child to grow up in.  Any history of domestic violence is essential to that consideration and you will need an advocate to help you present that information to a judge.

Contact or call the office of Charles D. Stark at 707.527.9900 today for help; he is an experienced and skillful attorney who is able to ensure that the strongest evidence is used to plead your custody case.  

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