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How does a domestic violence restraining order against a parent affect child custody and visitation?

Posted by Jaime Kissinger | Jun 18, 2018 | 0 Comments

Domestic violence is an issue that often arises in divorce and child custody cases. In some cases, claims of domestic violence are used to gain an advantage over the other party in the proceeding, while in other cases, domestic violence is a very real issue and the victim of the abuse needs protection. Given this, it is important to understand how domestic violence may affect your right right to child custody and visitation if a court makes a finding of domestic violence in your case.

A finding of domestic violence means the court has heard all of the facts, and based on those facts has reached a legal conclusion - that being that domestic violence has been committed by a party in the case. A finding of domestic violence can seriously impact the perpetrator of domestic violence rights to child custody and visitation. This is because the legislature has declared that it is "the public policy of the state to assure the health, safety, and welfare of children when determining the best interest of the children when making custody orders." Family Code section 3020(a). They have also declared that the perpetuation of domestic violence in a household where a child resides is detrimental to the child. Id.

To promote the policy, the court is required to apply the presumption that an award of sole or joint physical custody or legal custody of a child to the perpetrator is detrimental to the best interest of the child whenever a finding of domestic violence is made in a case involving child custody and visitation. Family Code section 3044(a) specifically states, "Upon a finding of domestic violence by the court that a party seeking custody of a child has perpetrated domestic violence against the other party seeking custody of the child or against the child or the child's siblings within the previous five years, there is a rebuttable presumption that an award of sole or joint physical custody or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child, pursuant to section 3011."

Although this presumption is in place, the perpetrator of domestic violence may still be able to get custody by overcoming the presumption by a preponderance of the evidence. When the perpetrator seeks to do this, the court must consider seven factors. Pursuant to Family Code section 3044 the factors are:

(1) Whether the perpetrator of domestic violence has demonstrated that giving sole or joint physical custody or legal custody of a child to the perpetrator is in the best interest of the child;

(2) Whether the perpetrator has successfully completed a batterer's treatment program that was a minimum of 52 weeks;

(3) Whether the perpetrator has successfully completed alcohol or drug abuse counseling if appropriate;

(4) Whether the perpetrator has successfully completed parenting class if appropriate;

(5) Whether the perpetrator is on probation or parole, and has complied with the terms of probation or parole;

(6) Whether the perpetrator is restrained by a protective order or restraining order, and complied with its terms and conditions; and

(7) Whether the perpetrator of domestic violence has committed any further actions of domestic violence.

While a court may not require the perpetrator of the abuse to complete a batterer's intervention program, enroll in drug or alcohol abuse counseling, or complete a parenting program when a domestic violence restraining order has been granted, it would only benefit the perpetrator to do so as it strengthens their argument for child custody. This is because a court must receive evidence that a perpetrator of abuse has completed the requirements deemed by the court necessary to rebut the presumption. Jason P. v. Danielle S. 9 Cal.App.5th 100 (2017).

In the event the perpetrator is not able to overcome the presumption, the perpetrator may be awarded visitation with their child. Under Family Code section 3100(a), reasonable visitation shall be granted unless it is not in the best interest of the child. The court shall consider supervised visitation, suspending or denying visitation, and why the restraining order was granted and how long ago it was issued when determining if there should be visitation. Family Code section 3100(b). A court must specify the time, day, place, and manner of transfer of the child when visitation is granted. Family Code section 3100(c).

Some people may believe, and the courts have even ordered, an equal parenting plan even though the perpetrator of domestic violence was unable to overcome the presumption. However, as decided in the case of Celia S. v. Hugo H., 2 Cal.App.5th 655 (2016), this may not be done.

In Celia, the parents were unmarried and had two minor children. They followed a 50/50 parenting plan in which the children alternated living with mother for one week and then father for a week. In January 2015, father went over to mother's house for dinner. Mother claimed that father pulled her out of the chair she was sitting in by her hair. Mother tried to push father away and he punched her in the ribs and stomach. Mother and father then proceeded to argue so the police were called and father was arrested. The next day, mother filed a domestic violence restraining order and the court granted a temporary order. The temporary order granted her sole legal and physical custody of their children.

At the hearing on the restraining order, the court heard conflicting testimony from father and mother. Mother testified that father had pulled her hair and punched her in the ribs and stomach. Father testified he never touched mother. Nonetheless, the court issued a one year permanent restraining order against father. The court granted mother sole legal and physical custody, but did not change the parenting plan despite acknowledging Family Code section 3044. Mother appealed.

On appeal, the court held that a court cannot circumvent the presumption by ordering a 50/50 parenting plan because doing so is an abuse of discretion and a subversion of the law. The nature of the order must be determined based on the order's legal effect, not the label attached to it. Id. at 658. The legal effect of a 50/50 parenting plan is essentially joint physical custody because under Family Code section 3007, joint physical custody exists where a child spends significant time with both parents. Id. at 663.

Given the affect the presumption has, it is also important to know that it applies to custody cases in California even when an out-of-state court makes a finding of domestic violence. Ellis v. Lyons, 2 Cal.App.5th 404 (2017).

About the Author

Jaime Kissinger

Jaime L. Kissinger built her family law practice on the philosophy that families from all walks of life deserve access to quality legal services in some of the most vulnerable and difficult times of their lives. This belief drives her steadfast commitment to her clients in the Contra Costa commun...

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