Domestic violence is a tragic reality and affects many family law cases in California. This is particularly true with respect to child custody cases. A court is required to consider the best interests of the child in rendering any custody decisions, and evidence of domestic violence will absolutely affect the outcome.
Whether you are the victim of domestic violence, or you have been falsely accused of it, you need a law firm that understands the impact it will have in your case. Turn to the experienced attorneys of MacKay & Martin, LLP. We are passionate about representing our clients' interests and can discuss legal options if your case involves accusations of domestic violence.
What Is Domestic Violence?
Most people understand domestic violence to include an individual who physically or sexually assaults another spouse or a child. If you are facing this level of domestic violence, you need immediate intervention by law enforcement. Our office can get you the help you need by providing confidential advice about your legal rights and resources that can end the abuse.
Domestic violence can take other forms as well, including threats, harassment, and stalking. Often threats are conveyed verbally but can be communicated by electronic or written means as well. Actions by a spouse or parent that put the other spouse or a child in fear can also be considered domestic violence.
How Does Domestic Violence Affect Custody Matters?
California Family Code 3044 is a special law that addresses child custody in the context of domestic violence. This law, sometimes referred to simply as 3044, applies where the court determines that a parent who is seeking custody “perpetrated domestic violence” within the last five years against any of the following:
- The other parent
- The child for whom custody is sought
- Siblings of the child for whom custody is sought
A person has “perpetrated domestic violence” when he or she is found by the court to have intentionally or recklessly caused, or attempted to cause, bodily injury or sexual assault to one of the above individuals. A person is also considered to have “perpetrated domestic violence” where he or she placed a person in reasonable apprehension of imminent serious bodily injury (including injury to that person or to another), or engaged in any behavior involving, but not limited to:
- Destroying personal property
- Disturbing the peace of another
In cases like these, there is a rebuttable presumption that an award of custody – whether physical or legal (e.g. involving the right to make decisions for the child) – is not in the child's best interests.
How Can A Presumption Against Awarding Custody Be Overcome?
If the court determines that an award of custody to a parent is not in the child's best interest because he or she “perpetrated domestic violence” as described above, that may not be the final word. The party against whom the finding is made can rebut the charge with evidence.
This evidence must demonstrate, first, that an award of physical or legal custody to the parent who perpetrated domestic violence is in the child's best interest. There is an important limitation to this. In most California custody cases, there is a preference for ensuring frequent and continuing contact between the child and both parents. When 3044 is involved, however, this argument will not suffice to argue that custody is in the best interests of the child.
In addition, the court must consider whether the parent seeking to rebut the presumption:
- Has successfully completed a batterer's treatment program that meets the criteria of California's Penal Code
- Has successfully completed a program of alcohol or drug abuse counseling, if determined by the court to be appropriate
- Has successfully completed a parenting class, if determined by the court to be appropriate
- Is on probation or parole, and whether he or she has, or has not, complied with the terms and conditions imposed by the probation or parole
- Is restrained by a protective order or restraining order, and whether he or she has, or has not, complied with the terms and conditions imposed by the order
- Has committed any further acts of domestic violence
The court is required to evaluate all of the above factors in deciding whether to rebut the presumption against the parent who has perpetrated domestic violence.
Why Should I Hire A Lawyer In Custody Cases Involving Domestic Violence?
Whether you have suffered domestic violence, or have been falsely accused of it, you need serious legal representation. A victim of domestic violence needs to understand that the other parent can overcome the presumption against awarding him or her custody. In cases like this, we challenge the other parent's arguments and involve witnesses as necessary. We thoroughly investigate the evidence involved and put forth our strongest case that an award of custody would be detrimental to the child.
On the other hand, if you've been accused of domestic violence you did not commit, you should understand that the court will consider domestic violence accusations early in the case and prior to awarding custody. What this means is that the judge's impression of your behavior, and whether the accusations against you are credible, will have lasting effects. Domestic violence accusations often come as a surprise to parents who are perfectly innocent or whose actions have been grossly exaggerated for the other parent's advantage. You deserve a quick-thinking, battle-ready attorney who will protect your parental rights and defend your reputation in court.
Contact Our Los Angeles Child Custody Domestic Violence Attorney
California's domestic violence laws are complex, but they play an integral role in custody matters. Whichever side of the case you are on, let the skilled attorneys of MacKay & Martin, LLP, go to work for you. Contact us today for a consultation.