Legal Center:  Children & Divorce

DOMESTIC VIOLENCE AND CUSTODY

by Aaron Dishon, Esq.

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:

  1. Is it in the best interests of the child;
  2. Did the perpetrator successfully complete a Batterers treatment program?;
  3. Did the perpetrator complete an Alcohol or drug abuse counseling program?;
  4. Did the perpetrator complete a Parenting class;
  5. Did the perpetrator comply with the restraining orders;
  6. 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.


This Article Domestic Violence And Custody was written by Aaron Dishon; Copyright Dishon & Block, APC.