How does domestic violence impact legal and physical custody?
If the court finds that a parent perpetrated domestic violence against the other parent, the child, or the child's brothers or sisters, within the last five years, there is a presumption that the parent who committed the acts should not receive joint or sole legal or physical custody of the child.
Under these circumstances, the court is more likely to grant the non-perpetrator parent sole legal and physical custody.
Sole legal custody means that one parent has the right and the responsibility to make the decisions relating to the health, education, and welfare of a child without requiring the consent of the other parent. These decisions include school enrollment, medical care, travel abroad, and more.
Sole physical custody means that a child resides with and is under the supervision of one parent, subject to the power of the court to order visitation, also known as parenting time, to the "non-custodial" parent.
To determine parenting time in a child custody case involving domestic violence, the court will look at the best interests of the child based on the evidence in each specific case.
Every case is different. In some cases, the court may suspend parenting time completely or order supervised visitation. In other cases, the court may order the parents to share equal parenting time and allow the parents to communicate briefly and peacefully to facilitate court-ordered visitation only.
California Family Law Judges are required to look at the following factors in a child custody case involving domestic violence:
Is it in the child's best interest to give the parent joint or sole custody?
Did the parent complete a batterer's treatment program that meets the criteria of the California Penal Code.
If alcohol or drug use was involved, one factor is whether the parent complete an appropriate counseling program to address those issues.
Whether the parent completed a parenting class if the Family Court determines that was appropriate.
Whether the parent is on probation or parole, and whether he or she has complied with those terms.
Whether the parent has complied with the restraining order terms that were issued.
Whether there has been further domestic violence
How do fabricated allegations of domestic violence impact child custody?
Allegations of domestic violence are very serious. In our experience, the majority of people seeking Domestic Violence Restraining Orders in Los Angeles are being honest about their experiences.
That said, there are those who will make false and fabricated allegations in an attempt to seek an upper hand in a child custody dispute or in a divorce.
It is critical to protect yourself from false allegations and to hire an attorney with experience presenting this type of case to the court. You may only have one, or very few, opportunities to present your case to the court, and a finding of domestic violence can significantly negatively impact your parenting rights.
If a Los Angeles Family Court judge finds that a parent intentionally fabricated allegations of abuse in order to gain an upper hand in a child custody battle, the judge can use this as evidence that the other parent is not credible and is not acting in the best interest of the child.
Keep in mind, these allegations are made under oath and it is a crime to lie in court. California judges take this very seriously, rightfully so.
For example, if proven that a parent intentionally fabricated allegations, a judge could grant the truthful parent sole legal and physical custody and order the lying parent to take parenting classes or take other remedial action.
Again, the facts of each case are different and a California judges will analyze the specific evidence to reach a decision.