VIOLENCE AND CUSTODY by Aaron Dishon,
Under a recently-enacted state law (Family Code Section
3044) the state has enacted a new policy regarding custody
and domestic violence.
Under the law, if the court finds a party to have been
a perpetrator of Domestic Violence within the past 5 years
there is a very strong presumption that the perpetrator
should not share Physical or Legal Custody with the victim-parent.
Thus, if the court finds that you have committed Domestic
violence within the past 5 years, there is a rebuttable
presumption to be proven by a preponderance of evidence
that neither physical or legal custody should be granted
to the perpetrator meaning that the victim of the violence
will obtain sole physical and sole legal custody.
It may be possible to rebut the presumption under certain
limited circumstances, but in practice it may be hard
to convince a judge that the presumption should not apply.
These are the factors that the court is supposed to consider
the following factors:
- Is it in the best interests of the child;
- Did the perpetrator successfully complete a Batterers
- Did the perpetrator complete an Alcohol or drug abuse
- Did the perpetrator complete a Parenting class;
- Did the perpetrator comply with the restraining orders;
- Are there further incidents of Domestic Violence?
However, if both parents are perpetrators of domestic
violence the statute does not apply.
This law clearly raises the stakes in custody cases where
domestic violence is alleged. While the law affords significant
protections to victims of violence, If you are accused
of domestic violence you need to seriously consider fighting
the allegations if you wish to obtain joint custody. If
you are a victim of domestic violence you are virtually
assured to obtain a sole custody order if you can prove
the incident of domestic violence.
There are some other implications to domestic violence
restraining orders. This year the legislature also amended
the law to allow the court to permit clandestine tape
recording of conversations with the domestic violence
perpetrator. The Court must make an order to allow tape
recording, otherwise it is ILLEGAL. Furthermore, it is
a felony-misdemeanor to continue to possess a firearm
after a restraining order is issued.
Violence And Custody was
written by Aaron
Dishon; Copyright Dishon
& Block, APC.