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How Does Domestic Violence Affect Child Custody?

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Child custody is one of the most complex areas of family law. When it comes to domestic violence though, California child custody guidelines are fairly simple: A judge is not supposed to give custody to a parent who has committed domestic violence. However, parents with a history of domestic violence may be granted visitation rights, depending on the circumstances of the case.

Can an abusive parent ever get custody?

Yes, there are exceptions. A judge can give custody to a parent who has committed domestic violence if:

  • It is in the child's best interests
  • The parent has completed a 52-week batterer's program
  • Has not committed any further domestic violence
  • They have obeyed all court orders to complete a drug or alcohol abuse program or a parenting class, and followed all terms of probation, parole, or a restraining order.

Domestic Violence Cases Are More Common Than You Think

According to the National Coalition Against Domestic Violence (NCADV), “40% of California women experience physical intimate partner violence in their lifetimes,” and “In a single day, domestic violence shelters served almost 5,800 women and children.”

If you previously thought that domestic violence was limited to being badly beaten to the point where you’re covered in bruises or have broken bones, we’re afraid domestic violence is far much more than that. In reality, you don’t have to be hospitalized at all to be a victim of abuse.

Domestic violence refers to hitting, kicking, scaring, throwing objects, pulling hair, pushing, following, harassing, committing sexual assault, and threatening to do any of these things. It also includes actions that make someone afraid that they're going to get hurt.

Domestic violence can be verbal, written, or physical, and includes any of the following behaviors:

  • Battery
  • Stalking
  • Harassing
  • Threats of abuse
  • Willful intimidation
  • Physical assault
  • Sexual assault
  • Disturbing the victim’s peace
  • Destroying the victim’s property
  • Emotional (psychological) abuse

Under California law, domestic violence occurs between people who “are or have been in an intimate relationship (married or domestic partners, are dating or used to date, live or lived together, or have a child together).” It’s also considered “domestic violence” when the abuser and the abused are blood relatives or related through marriage.

As far as physical abuse is concerned, it’s more than just hitting or punching. It includes throwing things, kicking, pushing, pulling the victim’s hair, scaring the victim, following the victim, or keeping the abused from freely coming or going. California’s domestic violence law expands to family pets; if the abuser harms the family pets, this is a form of domestic violence.

Statistics on domestic violence:

  • In the United States, 1 in 3 women have been on the receiving end of physical abuse at the hands of an intimate partner.
  • On average, domestic violence hotlines receive 21,000 calls each day.
  • Of all violent crime in the U.S., intimate partner violence accounts for 15%.
  • When a gun is in the home during a domestic violence incident, the risk of a homicide increases by 500%, if not more.
  • 94% of the victims in murder-suicides involving intimate partners are female.

(Source: National Coalition Against Domestic Violence)

Domestic Violence Restraining Orders in CA

In Los Angeles, California, victims of domestic violence can ask the court for a domestic violence restraining order. Domestic violence restraining orders are official court orders, which are meant to protect victims from further acts of physical or emotional abuse. If you are a victim of domestic violence, you may be able to obtain a domestic violence restraining order if the person has abused you, or is threatening to abuse you and:

  • You are married to the abuser,
  • The abuser is your domestic partner,
  • You are divorced or separated from the abuser,
  • You are dating or used to date your abuser,
  • You are living together, or you used to live together, or
  • You are closely related to the abuser by blood or marriage.

Is your child the one being abused? If your child is being abused by your current partner or spouse, or by someone you used to be in a relationship with, you can ask the court for a restraining order on your child’s behalf. If your child is at least 12-years-of-age, he or she can ask the court for a restraining order on their own.

If you wish to have a restraining order protect you or your children, and you want to file it against your current spouse, or against your ex, the restraining order can order the abuser to:

  • Not contact you.
  • Not possess a firearm.
  • Pay you child support.
  • Not contact your children.
  • Not contact your other relatives.
  • Stay away from your place of employment.
  • Stay away from your children’s daycare or school.
  • Move out of the family home.
  • Abide by a child custody and visitation order.
  • Pay specific bills, such as the mortgage and utility bills.
  • Take a batterer intervention program that lasts 52 weeks.

A restraining order certainly can affect whether an abuser can see his or her children. It can also affect immigration status; if the abuser is a permanent resident (Green Card holder), and he or she is found guilty of domestic violence, he or she can be placed into removal proceedings (deportation).

When a restrained person violates a domestic violence restraining order, he or she may face serious consequences, such as fines, or incarceration, or both.

Domestic Violence & Child Custody in California

You may be wondering how a judge decides that domestic violence is involved in a divorce or child custody case. Generally, California judges treat cases as domestic violence cases if: 1) one of the parents was convicted of domestic violence in the past 5 years, or 2) any court has decided that one of the parents abused the parent or the children.

It’s no secret that many domestic violence cases go unreported, and the courts are well-aware of the fact that family members can be abused for years and it’s never reported to the authorities. Sometimes, domestic violence is very serious in a relationship; however, the victim never called the police. In these situations, the judge on the case will carefully consider the evidence and from there, he or she will render a child custody decision.

If the judge decides that one of the parents has been abusing their spouse or children within the past 5 years, the judge will have to follow “special rules,” which apply to child custody and domestic violence cases. Usually, California judges do not give abusers custody; however, they normally can give that parent visitation.

Are there any exceptions? Yes, there are. On occasion, a judge can give custody to the abuser when it’s in the child’s best interests, when the abuser has completed a 52-week batterer’s program, when the abuser has not committed further domestic violence, and when he or she has successfully obeyed all court orders.

If you need an attorney to represent you in a domestic violence case, don’t hesitate to contact Claery & Hammond, LLP for a free consultation.


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