Every year, almost a million domestic abuse incidents are reported in the United States. In the state of California, judges, prosecutors, and law enforcement agencies treat every one of those reported incidents seriously.
That makes it difficult for those who are falsely accused of domestic abuse or domestic violence. Still, if the reports are not treated seriously, tragedy could be the result. Can a Walnut Creek child custody attorney help?
Family court judges in this state recognize that domestic abuse very negatively impacts children, so they do not want to award the custody of a child to a parent with a record of domestic abuse.
Exactly how do judges in California make determinations in child custody cases? What impact can a finding of domestic abuse have on a child custody case? What tools do judges and law enforcement agencies in California use to deal with domestic abuse – and domestic abusers?
WHAT IS A CALIFORNIA FAMILY COURT’S HIGHEST PRIORITY?
Nothing is more important than your child or children, so keep reading for the answers to these questions. You’ll also learn more about your rights in a California child custody case, about restraining orders, and you’ll learn where to turn for legal help in a custody dispute.
In any child custody case, and whether or not there is a charge of domestic abuse involved, a California family court’s highest priority will always be the best interests of the child.
WHAT ARE THE RESTRAINING ORDERS USED BY CALIFORNIA JUDGES?
One tool that California judges use to counter domestic abuse is the Domestic Violence Restraining Order (DVRO).
The alleged abuser named in a DVRO must abide by its terms and attend a DVRO hearing. The violation of a Domestic Violence Restraining Order may be penalized with a fine and/or time in jail.
Another tool judges use is the Emergency Protective Order (EPO). An EPO remains in effect for five to seven days and provides time to obtain the DVRO, which triggers a DVRO hearing.
According to Walnut Creek family law attorney Mujdah Rahim, “Whether you are requesting a restraining order or if you are the restrained party, a restraining order impacts custody and visitation.”
WHAT IS A “SECTION 3044” FINDING?
Attorney Rahim explains, “In California, if the Court makes a finding that domestic violence has been perpetrated against the victim who is requesting a restraining order, the Court will also make a Family Code Section 3044 finding.”
“In essence, 3044 will give the individual who is granted a restraining order sole legal and sole physical custody of the minor child.”
Speaking frankly, if a court determines that you abused your former partner or your child, your fight for the custody of your child will be considerably more difficult.
Family Code section 3044 holds that after the court has found domestic abuse, “there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child.”
HOW CAN YOU CONTEST A FINDING OF DOMESTIC ABUSE?
The key word in the statute is “rebuttable.” Attorney Rahim stresses, “Family Code Section 3044 can be rebutted when certain conditions are met.”
How can a Section 3044 finding be rebutted? A good family lawyer may be able to find flaws in the evidence used to make the original Section 3044 finding – and introduce better evidence to the court.
For example, if a former spouse or partner has fabricated a domestic abuse allegation against you, and your attorney can debunk that allegation – or show this it was vague, ambiguous, and/or without corroboration – depending on the details, that may be enough to override a 3044 finding.
In a heated courtroom battle for the custody of your child in this state, domestic abuse charges and restraining orders will damage your ability to win custody, and they may not be your only concerns.
WHAT ELSE SHOULD CONCERN PARENTS SEEKING CHILD CUSTODY?
If you ever anticipate that you will be contesting the custody of your child, you must avoid any criminal behavior, illicit drug use, or excessive alcohol consumption.
Here in California, even the suspicion of illegal drug use will work against you in a child custody case. In fact, anything in your life that might negatively impact your child could be used against you.
WHAT DO JUDGES CONSIDER BEFORE A CHILD CUSTODY RULING?
A judge will take the following factors in a child custody case – and other factors if necessary – into account:
1. parental fitness and history with the child
2. parental history of domestic violence or abuse and drug or alcohol abuse
3. whether a parent has made a false or exaggerated allegation against the other
4. the child’s preference
Every child custody case is different. While there is a legal presumption that joint custody is the best resolution – generally speaking, and in most cases – a California court will award sole custody to one parent if the court believes that decision is in the child’s best interests.
HOW ARE VISITATION PRIVILEGES DETERMINED?
When a parent is awarded a child’s sole custody in California, the other parent can expect visitation privileges. After a court’s finding of domestic abuse, however, supervised visitation may be required.
Visitation is denied entirely to a parent only after a finding of egregious domestic abuse or if the court believes the child is at risk in the parent’s presence.
When domestic abuse or domestic violence by a parent can be proven, California’s criminal and family courts will both act decisively to protect a child.
WHY SHOULD YOU CONSULT A FAMILY LAW ATTORNEY – AND WHEN?
In Contra Costa County, Alameda County, Solana County, and adjacent jurisdictions, you must have the advice and representation of an experienced family law attorney if you:
1. are divorcing, considering divorce, or anticipating a divorce
2. are on either side of a child custody dispute
3. need a restraining order to protect you and/or your child or children
4. are the person named in a DVRO or an EPO
Nothing is a higher priority than our children. If you are divorcing, or if you anticipate a fight for the custody of your child, and if you are a victim of domestic abuse, or if you are accused of domestic abuse, you must be advised by a family lawyer.
Get the legal help you need as a parent – as soon as you need it. Your child’s future is too important to make any other choice.