Domestic violence has been an unfortunate reality that is still common in Orange County and other places in the United States. Domestic violence is one of the leading reasons for Orange County divorce and paternity cases.
Does domestic violence being proven mean that the custody will remain the same? Will it result in the restrained parent staying away from the other parent only? Most importantly, will the custody be altered? The answer to all these questions is most usually “no.” There are substantial implications of domestic violence on child custody.
In California courts, if it is found that the parent seeking custody of a child – either sole or joint – has committed domestic violence against either the child’s siblings, the child himself, or against the other parent, in the previous five years pursuant to Family Code section 3044, the courts presume that the parent guilty of this offense should not be entitled to joint or sole custody because it is presumed to not be in the child’s best interests.
This presumption has far-reaching effects and implications. The court will believe their presumption to be true unless proven otherwise, by rebutting the legal presumption under Family Code 3044. The burden of rebutting the legal presumption is on the parent who then has to prove why he or she is entitled to get sole or joint custody.
The court has to consider many factors after a finding of domestic violence to determine what the appropriate child custody orders should be. Some of the factors are as follows:
- Where does the child’s best interest lie?
- Did the parent complete a batterer’s program which meets the criteria of the California Penal Code?
- Did the parent complete a parenting class which the family court deemed necessary?
- Did the parent follow the restraining orders issued?
- Was there further domestic violence?
The issue of domestic violence and the implications of domestic violence on child custody are substantial and can affect child custody for years. Therefore, if you have been the victim of domestic violence or you have been wrongfully accused of domestic violence, you must seek the services of a family law attorney familiar with these issues as soon as such incidents of domestic violence occur. What you do in the very beginning of your case can have huge consequences as to how your case turns out.
Gerald A. Maggio is an experienced Orange County divorce and family law attorney and family law attorney located in Irvine, California, serving the Orange County and Riverside areas. Mr. Maggio assists clients with legal issues including divorce, legal separation, divorce mediation, child custody, prenuptial agreements, stepparent adoptions, and other family law issues. Mr. Maggio has practiced law in California since 1999, and founded The Maggio Law Firm in 2005, focusing exclusively on divorce and family law matters.