Bay Area Family Law Center Lawyer Blog
In any family law dispute involving custody, the court’s primary concern is what is in the child’s best interest. While normally it is beneficial for a child to have ongoing contact with both parents, in cases involving domestic violence, the court may decline to grant a parent custody or visitation rights, unless the evidence demonstrates it should rule otherwise. In a recent California case, the court discussed what evidence is needed to demonstrate that a party has perpetrated domestic violence and that awarding custody to that party would be detrimental to a child. If you are immersed in a disagreement over custody that involves allegations of domestic violence, it is prudent to speak to a dedicated California child custody attorney to discuss what measures you may be able to take to safeguard the interests of you and your child.
Factual and Procedural History
It is reported that the mother met the father when she attended his karate class. She was thirteen at the time, and he was thirty-four. When the mother turned eighteen, they married and shortly thereafter had a daughter. The mother filed for divorce when the child was eighteen months old. The mother sought sole legal and physical custody of the daughter with limited visitation rights awarded to the father, alleging that the father had sexually molested her when she was a minor and routinely engaged in acts of domestic violence against the mother, in the form of stalking and verbal assault.
Allegedly, the court found that there was insufficient evidence that the father perpetrated acts of domestic violence and awarded the father joint custody, ordering a schedule that would allow him to have physical custody approximately thirty percent of the time. The mother appealed, arguing that the court abused its discretion in finding that the father should be granted custody rights.
Custody Cases in California Involving Domestic Violence
In California, the rules regarding determinations of child custody and visitation are set forth in the Family Code. Pursuant to the rules, a court’s primary concern is what is in the best interest of the child in question. The rules grant courts broad discretion in developing a parenting plan. In cases in which the parents are unable to agree on custody, the court will come to a decision following a hearing and an assessment of any relevant factor, including the safety, health, and welfare of the child, whether either parent has a history of abuse against the other parent or the child and the child’s relationship with each parent.
Although courts are given extensive leeway in evaluating custody disputes, the rules create a rebuttable presumption that a parent that has engaged in acts of domestic violence should not be granted joint or sole physical or legal custody of a child. While the presumption can be rebutted, it must nonetheless be applied in any case where the court finds that a party engaged in domestic violence. Further, the rules provide that the presumption can only be rebutted by a preponderance of the evidence. Thus, the burden of proving the presumption should be overridden rests with the parent that committed domestic violence.
In the subject case, the appellate court found that the evidence produced by the mother did not compel a finding that the father committed domestic violence. As such, it ruled that the presumption did not apply, and therefore the trial court did not err in granting the father custody rights.
Speak to a Trusted California Attorney
It is important for parents involved in a disagreement over custody to seek legal assistance to not only protect their parental rights but also to seek an arrangement that is beneficial to their child. If you need help resolving a custody matter, California child custody attorney Ethan M. Weisinger can formulate compelling arguments on your behalf to help you strive for the best outcome possible under the facts of your case. Mr. Weisinger can be reached through the online form or at 925-258-2020 to set up a conference.
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