How Domestic Violence Affects Child Custody in California

California family courts seek to make all decisions in the best interests of the child, especially matters of child custody and visitation. The court in California promotes a continued meaningful relationship with both parents as their goal, with shared parenting time as the ideal, if not always 50/50 custody. When spouses with children divorce, the court gives them ample opportunity to arrange their own schedules for sharing parenting responsibilities but when parents cannot agree to terms, a judge decides for them after carefully weighing the evidence and testimony presented by both sides at the divorce hearing. But what if one parent has committed acts of domestic violence? How do domestic violence allegations and/or convictions impact child custody decisions in California?

Two Types of Child Custody in California

When the courts decide on child custody in California, a judge decides on the following two types of custody:

• Physical custody: the amount of time each parent has the child in their physical custody
• Legal custody: decision-making rights for the child, including medical decisions and important decisions on education, religion, extra-curricular activities, and travel

When deciding on child custody, the state may give one parent physical custody and legal custody, or one parent physical custody and the other legal custody. The judge could also order that parents share both physical and legal custody of a child 50/50 or on a schedule that’s close to 50/50.

When deciding on physical and legal custody of a child an allegation of domestic violence against one parent or a domestic violence conviction has a significant impact on a judge’s decision.

California’s Laws on Domestic Violence and Child Custody

A family court judge in California must decide on child custody according to the state’s laws depending on whether there was a conviction against the parent for domestic violence or only an allegation.

For allegations of domestic violence, the judge carefully considers evidence and testimony before deciding on child custody. Depending on the circumstances of the case and evidence presented, the judge could still award custody or visitation rights to the accused parent, or order supervised visitation only.

If one parent has a conviction for domestic violence within the last 5 years, then California’s family code 3044—Presumption Against Persons Perpetrating Domestic Violence—applies. This law presumes that awarding sole or joint custody to a person who has committed acts of domestic violence is not in the child’s best interests. This includes any conviction of domestic violence against:

• The spouse
• The child
• The child’s siblings
• An intimate partner, boyfriend/girlfriend

The presumption that awarding custody to a parent with a domestic violence conviction is not in a child’s best interest is rebuttable only by a preponderance of the evidence.

Rebutting the Court’s Presumption

Some means of rebutting the court’s presumption that it’s not in a child’s best interests to be in the legal custody of a parent convicted of domestic violence could include demonstrating successful completion of the following:

• A parenting class
• A drug/alcohol abuse program
• A batterer’s treatment program

However, if the parent who committed acts of domestic violence commits further acts, violates the terms of probation, or violates a restraining order, the presumption stands that it’s not in the child’s best interests for that parent to share custody. A judge may order visitation or supervised visitation with that parent only after following a detailed decision-making process.