The short answer to this question is: yes, a domestic violence arrest can affect a child custody or divorce case in the state of California. Domestic violence charges are taken very seriously, and they are always weighed heavily in proceedings involving a child – especially if there is a history of the alleged offender engaging in violent behavior toward, or in the presence of, a minor child.
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 may, now and/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 and/or having little to no visitation with them if the other parent can prove a history of domestic violence.
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
- Individuals who are dating or engaged
If Violence Not 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 because courts fear that children who are in the presence of abuse will grow up to become abusers themselves.
Can Domestic Violence Presumptions Be Contested?
In the state of California, yes. Most states that impose domestic violence presumptions include provisions that allow the accused to rebut those presumptions. California is one such state.
When a presumption is rebutted, this means that the accused is allowed to provide evidence that he or she is actively trying to change his or her pattern of domestic violence, and that s/he is no longer a threat to the child’s safety or well-being. Acceptable evidence can include one or more of the following:
- Proof of completion of an anger management, parenting education, or batterer’s treatment course
- Proof of completion of a drug/alcohol treatment program
- A negative result on a drug or alcohol test
How Does Domestic Violence Affect Custody?
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 custody of the children. He can argue that the mother is incapable of protecting the children, and they would therefore be safer if they lived with him.
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 and, 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.
If you have been arrested for domestic violence, or if you have been falsely accused of engaging in domestic violence, then you may be considering hiring an attorney. Give us a call at (310)-997-4688, or fill out the form to the right. One of the experienced attorneys at Simmrin Law Group will contact you shortly to schedule a free, no-strings-attached case evaluation.