AN ACT OF DOMESTIC VIOLENCE CAN BE A BASIS FOR DENYING CHILD CUSTODY

Domestic violence can have a substantial and material effect upon the determination of child custody in a child custody hearing. 

When a party is found to have committed an act of domestic violence against the other party seeking child custody or against the child or siblings, a legal presumption is raised that it would be detrimental to the best interests of the child that  the person who "perpetrated domestic violence" be awarded sole or joint physical or legal custody.  A criminal conviction is not necessary to raise the presumption, only proof of an act of domestic violence occurred

A person has "perpetrated domestic violence" when a court find that the person has "intentionally or recklessly caused or attempted to cause bodily injury,, or sexual assault, or to have placed a person in reasonable apprehension of imminent serious bodily injury to that person or to another, or to have engaged in any behavior involving, but not limited to, threatening, striking, harassing, destroying personal property or disturbing the peace of another, for which the court may issue an exparte order to protect the other party seeking custody of the child or to protect the child and the child's siblings".  (See Family Code Section 3044)

The presumption may be rebutted by a preponderance of the evidence.  Factors that may assist the "perpetrator"  in rebutting the presumption, if applicable,  include: completion of a batter's treatment program or anger management program, completion of an alcohol or drug abuse program, completion of a parenting class, compliance with terms and conditions of probation, and whether or not any further acts of domestic violence has been committed.

As the domestic violence matters are assigned to criminal court and the child custody matter are assigned to family court, it is important that the criminal attorney and family attorney work together to achieve the best results in each of the proceedings.