California Divorce Blog–Domestic Violence and Child Custody

The issue of Domestic Violence often spills over into Divorce or Paternity matters involving child custody.  The reason is because once a Court makes a finding that Domestic Vionence has occurred, there is a reputable presumption that the granting sole or joint custody to the perpetrator of domestic violence is detrimental to the best interest of the child.  See California Family Code Section 3044.  This is a very powerful statute which can be used as a sword or shield depending on what side you are on.  This is all the more reason why anyone involved in a case which includes domestic violence allegations needs to get an attorney in my opinion.  The finding of the existence or absence of domestic violence can significantly change the dynamics of any case.

It is important to remember that the presumption always is rebuttable. In fact, a domestic violence perpetrator may overcome the Family Code Section 3044(a) presumption even if he or she was criminally convicted of domestic violence. [See F.T. v. L.J. (2011) 194 CA4th 1,28, 123 CR3d 120, 141 (rejecting argument that presumption is conclusive in cases involving criminal convictions).

If you are the victim of Domestic Violence and have children with the alleged perpetrator, obtaining an order for a Domestic Violence Restraining Order will give you additional leverage in your child custody litigation.  The presumption is that it is not in the child’s best interest to be with the perpetrator of domestic violence.  I want to caution everyone that this is not a game and domestic violence allegations should only be made when they are truthful and not be used to gain an unfair advantage against an opposing party.

Conversely, if you are the alleged perpetrator, it is crucial that you and your counsel present a zealous defense against the domestic violence allegations.  If the Court grants a Domestic Violence Restraining Order against you, the other party now has a stronger hand for the next round of child custody litigation.

Finally, every Child Custody Order should comply with California Family Code Section 3048 which sets forth the Required Contents for Child Custody Orders.

Attorney Keith F. Simpson is located in Manhattan Beach, California. Please contact Attorney Keith F. Simpson today to discuss your Family Law matter at (310) 297-9090 or http://www.simpsonlaw.net.

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