Domestic violence could be the most significant barrier to a parent gaining child custody and visitation rights. If a parent is facing domestic violence charges, then he or she should agree to supervised child visitation pending the outcome of the domestic violence case . Whenever a court orders child visitation in which a parent is charged with domestic violence, And other orders like protective orders, emergency protective orders, or separate restraining orders, matters become more complicated.
In this situation, the court's child visitation order specifies the day, time, place, and mode of transfer of the children. The purpose of the order is to ensure the safety of the children and family members, that the children remains unaffected by potential domestic fights or violence.
When the court considers child custody or visitation issues, the court must determine whether there any existing emergency protective orders, protective orders, or restraining orders involving the same parties or the minor children. If there are such existing orders, the court will not make a custody or visitation order that is incompatible or contrary to such existing orders.
Under Family Code section 3055, a person has “perpetrated domestic violence” when the court finds that he/she:
(i) intentionally or recklessly caused or attempted to cause bodily injury or sexual assault;
(ii) placed a person in reasonable apprehension of imminent serious bodily injury to that person; or
(iii) engaged in any behavior involving threatening, striking, harassing, destroying personal property or disturbing the peace of another. If such action has occurred the victim can seek ex parte (emergency) court orders to protect that party seeking custody of children.
When making an order for custody or visitation in a case where domestic violence is alleged and an emergency protective order, protective order or other restraining order has been issued, the court must consider:
Upon a court’s finding that a person seeking custody has perpetrated domestic violence against the other party, the child or the child’s siblings, within the past 5 years, there is a rebuttable presumption that a sole or joint physical or legal custody award to the perpetrator would be detrimental to the child’s best interest.
However, this presumption is always rebuttable. In fact, a domestic violence perpetrator may overcome the presumption even if he or she was criminally convicted of domestic violence.
A domestic violence perpetrator is unlikely to find a “level playing field” in seeking a custody award. The law presumes such a parent is not suitable for a sole or joint custody award.
Exigencies requiring ex parte custody orders:
Have your child custody and visitation rights been denied because of false allegations of domestic violence? Then, you need competent child custody and visitation attorneys who know the law and who are prepared to fight for your rights and to seek a child custody order that is in the best interests of your children.