Domestic violence conviction how will this impact child custody?

Recently on our divorce forum a user asked, “I was convicted of domestic violence in the State of California last year. My wife filed for divorce this month. I am concerned my domestic violence charge will negatively impact my ability to get custody of my children. Is this a valid concern? What should I do?”

You are right to be concerned that your domestic charge will eliminate your chances to get joint or full custody of your children. Like all states, the State of California considers a domestic violence charge to be very serious. Let’s take a closer look at the law.

What is domestic violence in California?

You may be criminally charged in the State of California under several different sections of the penal code for violent actions against family members including actions which are considered “”willful and unlawful use of force or violence against the person of another;” actions which “inflict serious bodily injury” on the victim; or corporal actions which cause “injury which results in a traumatic condition.”

The California Penal Code defines a family member as “A spouse or former spouse; cohabitant or former cohabitant in a home; a parent with whom the individual has a child; or a partner in a dating relationship.”

How does a domestic violence charge affect my rights to get custody of my child?

If you have been charged and convicted with domestic violence in the last five years this will have a direct impact on your child custody case. In fact, under California’s Family Code Section 3044, the law makes the legal presumption that you should not have sole or joint custody of your child if you have been found to have “perpetuated domestic violence.”

Perpetuating domestic violence can include:

  • Intentionally or recklessly causing or attempting to cause bodily injury
  • Sexually assaulting a child
  • Placing your child or another family member in imminent serious bodily injury
  • Performing other actions such as threatening, striking, harassing, destroying personal property, or disturbing the peace

Note: Issues can also arise if you have been charged but not convicted of domestic violence, there is a pending criminal case against you, or if your spouse has requested a restraining order against you. If any of these pertain to your case, you will need to seek legal advice from an attorney immediately.

How do I overcome this presumption of perpetuating domestic violence?

There are several steps you might need to take to overcome the presumption of perpetuating domestic violence including the following:

  • Completing a batterer’s treatment program that meets the criteria of the California Penal Code.
  • Attending an alcohol or drug treatment program if appropriate
  • Attending a parenting program
  • Complying with all terms of your probation or parole
  • Complying with the terms of the restraining order
  • Not committing anymore acts of domestic violence

Bottom Line:

The courts determine child custody issues based on a variety of factors; the most important of which is what they consider to be in “the best interest of the child.” The last thing the court wants to do is to put a child in a home or allow a child to visit someone who may cause the child harm. For this reason, a domestic violence charge is very serious and can impact your child custody case.

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