Custody

If a parent or non-parent who is seeking custody has committed domestic violence against any of the following people within the last five years, the judge will assume that it is not in the best interest of the child to give that parent or non-parent joint or sole custody:

• the other parent;
• the child;
• the child’s sibling;
• any child to whom the person is related by blood or affinity;
• any child who the person took care of for any amount of time;
• the person’s own parent, current spouse, or cohabitant; or
• someone with whom the person has a dating or engagement relationship.¹

However, that does not mean that the judge will never give that parent custody. After considering the following factors, the judge can decide to go against the regular assumption that the parent who committed violence should not get custody of the child. The factors that the judge will consider are whether or not the abusive parent or other person seeking custody:

• has shown that giving him/her sole or joint custody is in the best interest of the child;
• has successfully finished a batterer’s treatment program;
• has successfully finished alcohol or drug abuse counseling if the judge ordered him/her to do so;
• has successfully finished a parenting class if the judge ordered him/her to do so;
• is on probation or parole and, if so, whether s/he has followed all the terms of the probation or parole;
• has a protective order against him/her and, if so, whether s/he has followed the directions in the order;
• has committed any further acts of domestic violence; or
• has a domestic violence restraining order issued against him/her but is still in possession or control of a firearm or ammunition in violation of the law.²

The judge cannot consider, however, the general preference in the law for frequent and continuing contact with both parents.²

Note: If you are / were a victim of domestic violence and you believe that your California custody / visitation order puts your child in a dangerous situation with the other parent, you may want to contact the Family Violence Appellate Project. They work with low-income survivors of abuse in California who want to appeal a court order or who are defending against an appeal filed by the other parent and who cannot afford to hire an attorney.

¹ Cal. Fam. Code §§ 3044(a); 3011(a)(2)(A)
² Cal. Fam. Code § 3044(b)