A domestic violence arrest can affect a child custody or divorce case in the state of California. If you’re going through a divorce and have been arrested on a DV charge, you can consult with a Burbank domestic violence defense lawyer to protect your rights and find out how we can help.
Domestic violence charges are taken very seriously, and they are always weighed heavily in proceedings involving a child.
This is especially true if there is a history of the alleged offender engaging in violent behavior toward or in the presence of a minor child.
Domestic Violence Presumptions
California has become one of several states to enact statutes that support domestic violence presumptions. The “presumption” is that an individual with a history of domestic violence (DV) may, now or in the future, engage in behavior that may be harmful to a child.
Depending on the jurisdiction, a domestic violence presumption could result in the parent losing custody of the children or having little to no visitation with them if the other parent can prove a history of child abuse or domestic abuse.
However, a Burbank criminal defense lawyer may be able to help you contest these presumptions by demonstrating that you have taken steps to address the behaviors and are no longer a threat to the child.
Contesting DV Presumptions
In the state of California, domestic violence presumptions can be contested by the accused individual. This means that if a person is accused of domestic violence and there is a presumption that they are indeed guilty, they have the right to provide evidence to challenge and rebut this presumption.
California law allows the accused individual to present evidence showing that they are actively working to change their behavior and no longer pose a threat to the safety or well-being of their family members.
What Evidence Is Needed to Contest?
In order to contest domestic violence presumptions in California, acceptable evidence may include showing proof of the following:
- Attending counseling or therapy sessions related to anger management or domestic violence prevention
- Completing educational programs on healthy relationships and communication skills
- Participating in support groups for individuals who have committed acts of domestic violence
- Engaging in other activities aimed at addressing and changing patterns of abusive behavior
By presenting this evidence, individuals accused of domestic violence have the opportunity to demonstrate their commitment to improving themselves and ensuring the safety of those around them.
How does the State of California Define Domestic Violence?
Domestic violence is often associated with physical abuse, but this is not always the case. People can be victimized in many different ways, including:
- Bodily injury
- Sexual assault
- Threats of bodily injury
- Harassment (including stalking, threats, and unwanted phone calls)
- Financial abuse (one spouse controls all of the finances)
Such abuse is considered “domestic” when it is committed against any of the following people:
- Current or former spouses
- People who live together or who used to live together
- Family members, related either by blood or marriage
- Couples who have children together
- Children
- Individuals who are dating or engaged
If Violence Is Not Directed Toward the Child, Are Courts Still Reluctant to Award Custody?
If a child witnesses one parent abusing the other, but that parent has never hit or was otherwise directly violent toward the child, courts will still exercise extreme caution in a custody or visitation proceeding.
This is not only an abundance of caution revolving around speculation that the violence may later be redirected at the child. There is also a large concern from the courts that children who are in the presence of abuse will grow up to become abusers themselves.
How does Domestic Violence Affect Custody?
If domestic violence is proven, the abusive parent is likely to face a loss of custody along with greatly reduced visitation rights. Some of the actions the court may take include:
- Ordering supervised visitation
- Revoking portions of the accused parent’s current visitation order
- Ordering the parent to participate in parenting or anger management classes
- Ordering the parent to participate in domestic violence counseling
- The revocation of the accused parent’s visitation rights altogether (this can be temporary or permanent)
- Issuing a restraining order against the accused parent
- Complete termination of parental rights
Termination of Parental Rights
The complete termination of parental rights is a judgment that is rarely handed down and never done lightly. Termination of parental rights (TPR) means that a parent loses all of their rights to both physical and legal custody of their child.
TPR judgments occur when a parent has become unfit to care for a child, abandoned or neglected their child, or caused their child serious, physical, mental, or emotional harm through abuse. A TPR is a permanent order. That means that once a parent has their parental rights terminated, they can never be reinstated.
Other Ways that Custody Can Be Affected
Suppose a father discovers that his ex-spouse’s new boyfriend is either abusing his children or his ex-spouse in front of the children. The father is within his right to file a petition with the court for full physical custody of the children. He can argue that the mother is incapable of protecting the children and that they would, therefore, be safer if they lived with him.
Factors Considered by the Court
There are many factors that the court considers when considering an accusation of domestic violence in a child custody case. Some of the things that a judge will review before making a decision include:
- Whether the child was the direct victim of any of the alleged instances of abuse from the accused
- Whether the child was a witness to any of the alleged instances of abuse
- The severity and frequency of the alleged instances of domestic violence
- Whether the accused continues to pose a threat to the child or other parent
- If there is a pending criminal case against the accused
- Police reports documenting incidents of alleged abuse by the accused
- Any physical evidence that backs up the allegations, such as photographs of the sustained injuries
Can False Accusations of Domestic Violence Be Ignored?
Domestic violence is not taken lightly by the courts, which is why it is both upsetting and frustrating for a parent to be subjected to false allegations simply because the other parent hopes to gain the advantage in a legal proceeding. However, even if the allegations are completely untrue, it is important that they be contested.
If ignored, the courts will be forced to accept the allegations as true and will impose the appropriate presumptions. You may wish to consult with an experienced family law attorney, maybe even one with a background in criminal law, who can advise you on how best to proceed.
How does an Individual File for a Domestic Violence Presumption?
Typically, the accusing parent will seek what is called a “temporary restraining order” from the court. Temporary restraining orders do not require as much notice as a regular custody order. As a result, they are often awarded by default. This is because the accused parent may not have enough advance notice to make arrangements to appear in court to fight the allegations.
Fighting Domestic Violence Allegations
If you have been arrested for domestic violence or if you have been falsely accused of engaging in domestic violence, your custody rights are at risk. You need an experienced domestic violence law legal team that knows how to protect your legal rights.
The domestic violence defense attorneys of Simmrin Law Group have extensive experience protecting those whose custodial rights are at risk due to DV and other criminal charges. Don’t hesitate. Contact us today to learn more about how we can help.