The Effect of Domestic Violence in Custody Proceedings

The Effect of Domestic Violence in Custody Proceedings can result in more than just a Restraining Order against the offending party. Incidents that may fall under conduct enjoined under the Domestic Violence Prevention Act (DVPA) are a fairly common occurrence in family law matters. Sometimes a request for a protective order is brought before the Petition for Dissolution of Marriage or Petition to Establish a Parental Relationship (where the child is born outside of a marital relationship) is filed. Other times the victim of domestic violence may decide to leave the family residence in order to avoid further abuse rather than file for a protective order. Even where there is no protective order, the Court must consider allegations of domestic violence in custody and visitation matters and make a factual finding as to whether domestic violence was perpetrated by one party against the other parent or child.  Such a finding then triggers the mandatory application of Family Code Section 3044.

Presumption of Sole Custody/ Family Code Section 3044: Upon a finding by the court that a party seeking custody of a child has perpetrated domestic violence against the other party seeking custody of the child… within the previous five years, there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child, pursuant to section 3011.

What constitutes domestic violence? Family Code section 3044(a). Subdivision (c) of section 3044 states a person has perpetrated domestic violence within the meaning of subdivision (a) when, among other things, he or she is found to have placed a person in reasonable apprehension of imminent serious bodily injury to that person or another, engaged in any behavior involving, but not limited to, threatening, striking, harassing, destroying personal property or disturbing the peace of another.   Family Code section 3044(c).  When making an order for custody and visitation, it is the fact of domestic violence, not whether an order was issued, that controls. Marriage of Fajota (2014).

What if the parties Stipulated to a Protective Order?

If the parties’ stipulated order for protection expires, the trial court is required to consider the fact that another court issued an order of protection. Ellis v. Lyons (2016).  The court must make findings under Family Code section 3044 regardless of disposition of another case. Special application in move-away cases. A finding of domestic violence also has specific application in move-away cases.  When a parent with sole custody seeks to relocate, the other parent (noncustodial parent) who seeks a change of custody in order to prevent the children from moving, bears the initial burden of showing that the relocation would cause detriment to the child.  Additionally, when there is a finding of domestic violence, the friendly parent doctrine does not apply (i.e. which parent is more likely to allow the child frequent and continuing contact with the non-custodial parent).

What is the effect of guilty plea to a Criminal Domestic Violence charge?  When one party is arrested and charged with criminal domestic violence under the Penal Code, the disposition of the criminal matter can have an affect on the Family Law custody proceeding. Subsection (d)(1) of Family Code Section 3044 provides that the requirement of a finding by the court shall be satisfied by, among other things, and not limited to, evidence that a party seeking custody has been convicted within the previous five years, after a trial or a plea of guilty or no contest, of any crime against the other party that comes within the definition of domestic violence contained in Section 6211 and of abuse contained in Section 6203, including, but not limited to, a crime described in subdivision (e) of Section 243 of, or Section 261, 262, 273.5, 422, or 646.9 of, the Penal Code. However, where a charge of domestic violence does not result in a conviction or guilty plea, such a result does not preclude the application of Family Code Section 3044.  The burden of proof is much higher in a criminal conviction (beyond a reasonable doubt) in contract with a finding in a civil domestic violence matter (preponderance of the evidence).

Rebutting the Presumption of Family Code Section 3044: Once the Court has made a finding of domestic violence, then the presumption against an award of sole or joint custody to the offending parent is invoked.  The court must then look at several factors to determine whether this presumption has been rebutted. Subdivision (b) of Family Code Section 3044 states that in determining whether the presumption set forth in subdivision (a) of Section 3044 has been overcome, the court shall consider all of the following factors: (1) Whether the perpetrator of domestic violence has demonstrated that giving sole or joint physical or legal custody of a child to the perpetrator is in the best interest of the child.  In determining the best interest of the child, the preference for frequent and continuing contact with both parents, as set forth in subdivision (b) of Section 3020, or with the non-custodial parent, as set forth in paragraph (1) of subdivision (a) of Section 3040, may not be used to rebut the presumption, in whole or in part. (2) Whether the perpetrator of domestic violence has completed a batterer’s treatment program that meets the criteria outlined in subdivision (c) of Section 1203.097 of the Penal Code. (3) Whether the perpetrator has successfully completed a program of alcohol or drug abuse counseling if the court determines counseling is appropriate.    (4) Whether the perpetrator has successfully completed a parenting class if the court determines the class to be appropriate. (5) Whether the perpetrator is on probation or parole, and whether he or she has complied with the terms and conditions of probation or parole. (6) Whether the perpetrator is restrained by a protective order or restraining order, and whether he or she has complied with its terms and conditions.  (7) Whether the perpetrator of domestic violence has committed any further acts of domestic violence.
The application of domestic violence in child custody and visitation matters is a complex area of family law. Each case is unique, and as such requires careful analysis and proper application of the relevant Family Code statutes and case law.

Do you want to hear more about the latest information on the Effect of Domestic Violence in custody proceedings? If you have questions regarding this issue, please contact our office to schedule a consultation. The Law Office of Bawden & Kochis also handle legal issues regarding adoption, annulment, mediation, child custody (with no accompanying domestic violence), child and spousal support as well as pre-marital and post-marital agreements. Telephone (909)792-0222, or email us at Officestaff@Richardbawdenlaw.com.

When he is not practicing law, Robert enjoys traveling, especially to the Caribbean and to Hawaii. He also claims the Lakers as his favorite sports team, loves Italian food, and often relaxes with a guitar.