Child Custody: Impact of Physical Abuse & Family Violence
Child custody issues in a divorce will be more complex if you marital relationship was violent or abusive. When you plan to file for divorce, it is important to ensure that you and your children can make a safe transition. Before you talk to your violent or abusive spouse about divorce, it is best to consult with an experienced divorce lawyer in Orange County who will guide you about the necessary steps for your safety.
Child Custody Laws and Domestic Violence
In Orange County, a special law under Family Code 3044 may apply to your child custody case, if your answer is “yes” to one of the following two questions:
During the past five years, did the other parent indulge in family violence that led to:
- Criminal conviction for domestic violence against you, any of your children, your present spouse, or someone you are living with, dating, or engaged to, or your parents? OR
- Determination of domestic violence by a family court judge against one or more of the individuals listed in part (a) – for example, a restraining order issued against the other person for at least one year?
Even if Family Code 3044 is not applicable to your case, you or your attorney must inform the judge about the incident of family violence or physical abuse. The judge will take those facts into account while deciding on child custody.
When Family Code 3044 Applies to Your Case
If the special law 3044 is applicable to your divorce case in Orange County, it will create a rebuttable presumption that the perpetrator of domestic violence is unfit to be awarded physical or legal custody of the child (whether sole or joint) because it may harm the child’s best interests. Only if the other party is able to rebut this presumption through evidence, they may be awarded any custody rights.
Only where the judge believes it is in the child’s best interests that the parent who committed domestic violence should be awarded custody, they may consider it. The judge will evaluate the following factors in this case:
- • What is in the best interest of the child?
- • Did the perpetrator commit any other act of family violence?
- • Did the perpetrator abide by the terms of the restraining order?
- • Has the perpetrator completed a one-year batterer intervention program?
- • Has the perpetrator completed a drug/alcohol rehab program, if ordered by the court?
- • Has the perpetrator completed a parenting class, if ordered by the court?
- • Did the perpetrator abide by the terms of parole or probation, if applicable to their case?
No matter if the parent in this case has a professional recommendation from a court-appointed evaluator or expert, the judge will still apply this 7-factor test to determine child custody in such cases.
Maintain Proper Records
Until you are living with the spouse who has engaged in domestic violence, you should discreetly maintain a detailed record of every violent or abusive act that involves you or your children. Note when, where and how the incident occurred and describe the injuries that you or your kids suffered.
If you are eventually planning for a divorce, your attorney will be able to use this evidence to convince the judge to award you sole or joint custody of your children as well as ensure that you are protected against future abuse.
Plan for Your Safety
Once you have made up your mind to leave your abusive or violent spouse, you will need to plan a safe transition. You and your kids are most vulnerable when you are actually going to move out. Start saving some money and preferably keep any cash away from your home, perhaps with a trusted family member.
Deposit some clothes and essential belongings for you and your children with a family member or a friend. Finally, arrange for a secure place where you can immediately move in after you leave. Your spouse may come looking for you, so the ideal way would be to get in touch with a dependable Orange County divorce attorney who can help ensure your protection in these circumstances.
Obtain an Emergency Custody Order
When you leave with your children to protect yourself from your abusive or violent spouse, your attorney will quickly move court to ensure that you have an emergency protective order. This order from the court may require your spouse to not come near you and may give you the legal and physical custody of your children. In absence of this custody order, your spouse may accuse you of kidnapping.
This custody arrangement will only be temporary to give you immediate relief. Your lawyer will prepare a legal strategy to help you win permanent custody of your children as a key element of your Orange County divorce proceedings.
For all custody arrangements, whether emergency or long-term, the family court will consider the child’s best interests. While California family law spells out the factors the judge should consider, the issue of domestic violence and abuse will become a critical element in the judge’s decision on child custody.
Visitation Rights of the Non-Custodial Parent
You may find it hard to accept if your batterer gains visitation rights to meet the children, but if there is no evidence of the violent parent having abused the child, the judge may grant them visitation rights.
Depending on the circumstances, your child custody attorney may be able to convince the judge to order supervised visitation. Correlating with this, the attorney may request the court to ensure that the other parent be prohibited from drinking or disallowing the presence of certain persons when the children are around.
Pick up and drop off for your children can be arranged at a neutral site or through a responsible third party. The neutral site may be a busy public place or a local police station if you feel unsafe while dropping off your children. Your legal professional may also suggest other thoughtful approaches. The judge may consider any reasonable plan in these circumstances to keep you safe while also uphold the other party’s visitation rights at the same time.
Have a Seasoned Family Law Attorney on Your Side
Child custody is one of the most sensitive issues in a divorce, and much more so when the marital relationship has been violent. You need an experienced and resourceful Orange County child custody lawyer on your side who can help you put domestic abuse and suffering behind you for good. Where necessary, your lawyer will also help you obtain a restraining order against your abusive spouse to ensure protection for you and your kids.