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Understanding the Impact of Domestic Violence on Child Custody and Support Matters
Domestic violence is a serious issue in California and across the country, and the family court system treats these cases with the utmost care to ensure the safety of everyone involved. Being accused of domestic violence or being convicted of a domestic-violence-related charge can have a significant effect on nearly every aspect of a divorce or custody case, from how parenting time is allocated to how the best interests of the child are determined. Whether you’ve been accused or you’re a victim, it’s critical to understand how California defines domestic violence and what effect it can have on child custody and support decisions.
Defining Domestic Violence
According to California Family Code Section 6211, domestic violence is any abuse that involves a current or former spouse, a current or former cohabitant, a current or former dating partner or fiance, someone the perpetrator has a child in common with, or a child. Abuse against “any other person related by consanguinity or affinity within the second degree” also qualifies as domestic violence.
California does not limit the definition of abuse to only actions that cause physical injury. It also includes any actions that disturb the victim’s peace, which means that financial, mental, and emotional abuse can also be considered domestic violence.
Someone who has been accused of domestic violence can be charged with a variety of crimes, depending on the circumstances. These could include battery, corporal injury to a spouse, child abuse, criminal threats, false imprisonment, harassment, stalking, and sexual assault, among others.
How Domestic Violence Can Impact Child Custody
Evidence of domestic violence must be considered in child custody cases because the court must determine the best interests of the child. This includes their physical safety and emotional well-being. In most situations, domestic violence allegations must have been made within the last five years to be a factor in determining child custody. They can affect these cases in the following ways.
Presumption Against Custody
California has a rebuttable presumption that a parent who has “perpetrated domestic violence” within the last five years should not have sole or joint physical or legal custody of the children. A rebuttable presumption means that the court provides a requirement for the parent who perpetrated the domestic violence to provide evidence that it would be in the children’s best interest for that parent to be given either sole or joint custody. If a permanent restraining order is granted then the Courts in California are precluded from granting joint legal and physical custody until the Court has found sufficient evidence to find that the perpetrator has been rehabilitated to the point where they can have joint legal custody or more time with the children. Some evidence that can be used to support this rebuttal includes the successful completion of a batterer’s treatment program or substance abuse program, completing parenting classes, complying with any existing domestic violence restraining orders, and avoiding any further acts of domestic violence.
Temporary Orders
When domestic violence is part of a custody case, and there is evidence that the parent or children are in immediate danger, it’s possible for the victim to get a temporary order for custody that could limit the accused parent’s access to the children. While temporary orders are subject to change, it can be challenging to overcome them once they are set because it establishes a status quo for the children. If there is no compelling evidence that the children would be better served by a change in the order, the temporary order could be made permanent.
Complications of Domestic Violence Restraining Orders
Victims of domestic violence can ask a judge to grant a domestic violence restraining order (DVRO). This order can stop the accused party from having any contact with the victim, force them to move out of a shared home, and establish spousal and child support. Not being able to live in the shared home or have any contact with the alleged victim can make it difficult for an accused parent to maintain a relationship with their children. Further, the presence of a domestic violence restraining order can make it more likely for the victim to be granted sole custody.
How Domestic Violence Impacts Child and Spousal Support
Domestic violence can impact child support and spousal support orders. For example, a domestic violence conviction can affect whether someone is ordered to pay spousal support. If someone is convicted of a felony charge related to domestic violence, their spouse cannot be ordered to pay spousal support as part of the divorce as long as the divorce filing was within five years of the conviction or sentence. If the conviction was for a misdemeanor charge related to domestic violence, the victim generally isn’t required to pay spousal support. However, in this case, it’s a rebuttable presumption, which means that the other party can provide evidence and testimony, and the judge makes the final decision.
When someone requests a domestic violence restraining order, they are also able to request child support or spousal support at the same time. When it comes to child support, the amount of time each parent spends with the children can be used in the calculation. If domestic violence charges have left one parent without custody or with less parenting time than the other, this can result in them paying more child support.
If domestic violence allegations are part of your custody or support case, you need legal representation to ensure you understand how these matters may affect your safety, finances, and access to your children. At Khosroabadi & Hill, APC, we help clients navigate the family law system and ensure their parental rights and the best interests of their children are protected. If you have questions about divorce, child custody, or other family law matters, call (858) 240-2093 today to talk to a member of our team.
