Domestic Violence & Child Custody in California

Fifty years ago, domestic violence was something that people would keep quiet about. If a man abused his wife or children and people knew about it, they would “mind their own business” because back then, spousal and child abuse were more socially acceptable, but nowadays we assure you they are not.

In the United States, we have come a long way in regards to recognizing the dangers of domestic violence. Judges in the family and criminal courts frown upon domestic violence and if it can be proven that the accused (mother or father) did in fact abuse their spouse or children, then the abuser can face serious legal consequences.

In Los Angeles and throughout California, if someone is abusing their husband or wife, and/or their children and the courts find out about it, the abuser can be prosecuted in criminal court, and face fines and imprisonment.

What are the family consequences of domestic violence?

Let’s say that a man is abusing his wife and children. The family lives in the Los Angeles area and the police were called to the family’s home after a neighbor heard a lot of yelling and called 911.

The police arrived at the scene and immediately found evidence that the husband had abused his wife in front of their children, causing severe injuries to her face – the husband is arrested on the spot.

In reality, the husband has been abusing his wife and children for many years, but this is the first time that he was caught. He was raised in a violent household himself and thinks that this is the way a husband handles his wife and children. However, our society and the law says otherwise.

On the eve of the dispute between the husband and wife, the husband was arrested and taken down to the station. The next morning, his wife asks the court for a domestic violence restraining order. The wife ensures that her children are protected in the restraining order as well since they too are victims of abuse.

What can a restraining order do?

  • Order the abuser to stay away from the people protected in the order, including the abuser’s spouse and children,
  • Order the abuser to move out of the family residence,
  • Order the abuser to relinquish their firearms,
  • Prohibit the abuser from possessing any firearms,
  • Order the abuser to pay certain bills, such as the auto loans, insurance, and the mortgage or rent,
  • Order the abuser to pay child support and/or spousal support,
  • Order the abuser to stay away from the victims’ home, work, or school,
  • Prohibit the abuser from making any large purchases,
  • Order the abuser to complete a 52-week batterer intervention program, and
  • Order the abuser to stay away from the family’s pets.

Special note for immigrants: A conviction for domestic violence can lead to deportation proceedings, even if the abuse was against your own spouse or child. You can learn more about deportable offenses by referring to the Immigration and Nationality Act.

If a domestic restraining order is taken out against somebody and they violate the conditions set forth in the order, the police can be notified and the violator can be arrested and incarcerated.

Once a restraining order is issued against someone, the order is entered into CLETS, a statewide database that is accessible by all law enforcement. If the offender moves out of state, the protected persons in the order are encouraged to contact the new local police where the offender lives so they will know about the restraining order.

Domestic Violence and Child Custody Laws

While domestic violence is a serious issue, it’s not uncommon for a spouse to falsely accuse their husband or wife of spousal or child abuse in an effort to gain an upper hand in a divorce. For this reason, judges cannot simply accept that domestic violence is occurring because one person says it is.

When it comes to child custody and visitation rights in a domestic violence case, the first order of business is for the judge to determine if one party is in fact committing domestic violence. If the judge determines that there is domestic violence, he or she must follow specific rules when deciding on child custody.

A family court judge will treat a case as a domestic violence case if in the past 5 years: 1) one of the parents was found guilty (convicted) of domestic violence against their spouse, or 2) any court has determined that one of the parents committed domestic violence against the children or the other parent.

Generally, if a judge determines that one of the parents has committed domestic violence, then the judge cannot give joint or sole custody to the abusive parent, however, the abusive parent can visit with their children.

Still, there are exceptions to the above rule. At times, a judge CAN give sole or joint custody to a parent who has committed domestic violence when the abusive parent:

  • Can prove that having custody would be in the children’s best interests,
  • Successfully completes a 52-week batterer program,
  • Successfully completes a substance abuse program, if ordered by the court,
  • Successfully completes a parenting course if it was ordered by the court,
  • Is currently on probation or parole and is complying with the terms of probation or parole,
  • Has a restraining order against them and they are following the orders, and
  • Has NOT committed any new acts of violence against the protected persons.

Are you being accused of domestic violence? Or, are you or your children a victim of domestic violence at the hands of your husband, wife, or domestic partner? In either case, you should become informed of the laws that refer to domestic violence and child custody in California, and how they apply to you.

For the legal advice you need, contact a Los Angeles child custody lawyer at Claery & Hammond, LLP.