Bay Area Family Law Center Lawyer Blog
In California, the main concern of the courts in any child custody proceeding is what is in the child’s best interest. This means, among other things, that the court will assess whether one or both parents have a history of engaging in domestic violence. If they do, the court will assume that it will not benefit the child to live with the parent. The presumption is rebuttable, though, as discussed in a ruling recently issued by a California court. If you are faced with a custody dispute and have concerns about domestic violence, it is prudent to meet with a California child custody lawyer to discuss your options.
Factual and Procedural Background of the Case
It is alleged that the wife and the husband married and then had two minor children together. The wife subsequently filed a lawsuit requesting a divorce. Concurrently, she filed a petition for a DVRO (domestic violence restraining order) against the husband in a separate case. The DVRO petition was dismissed, however, due to her failure to serve the petition on the husband. The trial court then granted a divorce by default and awarded the wife sole custody of the minor children.
It is reported that the wife then moved to Utah with the children, after which the husband filed a motion to set aside the default on the grounds that he was unaware of the divorce action. The wife then filed a request for a DVRO in a court in Utah and offered evidence that the husband engaged in years of abuse against her. The Utah court granted the wife’s request and issued a temporary DVRO, while at the same time, the California court granted the husband’s motion to set aside the default and granted him joint custody. As such, the wife appealed.
Domestic Violence in Custody Cases
After reviewing the evidence, the appellate court reversed the trial court’s ruling. Pursuant to California’s Family Code, the courts have an obligation to make a custody determination that is in the child’s best interest. As such, they must engage in reasonable measures to evaluate whether any protective or restraining order that relates to the parties or the child is in effect.
Additionally, the Family Code provides that the courts have to presume that a parent that engaged in acts of domestic violence against their co-parent within the past five years should not be granted sole or joint legal or physical custody of a child. The presumption is rebuttable, but the courts cannot refuse to apply it. As the trial court in the subject case neglected to apply the presumption, the appellate court vacated its ruling.
Speak to a Trusted California Family Law Attorney
In California custody actions, the courts must evaluate what is in the child’s best interest, and if the court fails to do so, either party may seek an appeal. If you are embroiled in a dispute over custody of your child, it is smart to speak to an attorney regarding your rights. The trusted child custody attorneys at the Bay Area Family Law Center can assess the facts of your case and help you determine what measures you can take to seek a fair outcome. You can contact us at 925-258-2020 or via the form online to set up a conference.
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