Domestic violence in Orange County has occurred throughout history without boundaries. No economic, social, or cultural class is immune to the effects of domestic violence. It can occur between any domestic relationships, including spouses, domestic partners, intimate partners, parent and children, in-laws, relatives, household members, and roommates.
Studies show that children are particularly harmed by domestic violence: mothers beaten while pregnant, children witnessing their mothers being assaulted, and children present when their mothers were murdered by their mother’s intimate partner (e.g. child’s father, child’s stepfather, mother’s boyfriend, etc.). So how does domestic violence in Orange County affect child custody and visitation?
Domestic Violence Defined
The California Domestic Violence Prevention Act (hereinafter “Act”), Fam. Code §§6200 – 6219, defines domestic violence as the abuse against people in a current or former domestic relationship, such as:
- Current or former spouse
- Current or former cohabitant (people who lived together)
- People who are or have been dating or engaged
- People who have children together
- People related by blood or marriage
For the purpose of the Act, “abuse” is defined by Fam. Code § 6203 to include:
- Intentionally or recklessly causing or trying to cause bodily injury.
- Sexual assault.
- Making a person reasonably afraid of being in danger of immediate serious bodily injury to that person or to another person.
- Engaging in any behavior that has been or could be cause a California court to issue a domestic protective order pursuant to Code § 6320, including molestation, sexually assault, stalking, hitting, threatening, harassment, and physical assault.
California recognizes that abuse is not limited to actual infliction of physical assault or injury. Thus, verbal and emotional abuse is a form of domestic violence, not just physical violence.
Domestic Violence Impacts Child Custody
California is a “no fault” divorce state. This means that you can dissolve your marriage and be restored to the status of single or unmarried person without having to prove that you and/or your spouse did something wrong. The only requirement is that you prove that you and your spouse have irreconcilable differences (Fam. Code §§ 2310-2311) or one spouse is incurably insane (Fam. Code § 2312). However, specific acts of wrongdoing during the marriage, such as committing domestic violence, are relevant when the acts are pertinent to the award of child custody.
Types of Child Custody
Child custody can be shared (joint custody) or awarded to one primary parent (sole custody). There are two forms of custody:
- Legal custody – a parent’s right to make major decisions in a child’s life, such as the child’s medical treatment or education.
- Physical custody – where the child lives and provides basic care, such as room and board).
Courts generally follow the policy that children benefit from frequent and regular exposure and contact with both parents. However, California’s legislative policy is to first ensure the child’s health, safety and welfare. Accordingly, if domestic violence or abuse is perpetuated in the child’s family home, then it is detrimental to the well being of the child. Legislative policy dictates that all court orders are made to ensure the safety of the child and the child’s family members.
Best Interest of the Child
When deciding which parent shall have custody when custody is in dispute, the court is required to determine the best interest of the child and what will best promote a child’s health and welfare. Judges consider any factor relevant to parenting, taking into account the circumstances of each case.
One such factor is considering a parent’s history of abuse against any of the following people:
- Any blood related child or child related by marriage to the abusive parent, no matter how temporary
- Any child with whom the abusive parent is a caregiver, no matter how temporary
- The other parent
- A parent, current spouse, fiancé, significant other in a dating relationship, roommate of the parent or person seeking custody
When abuse by a parent is alleged, the court will look at independently-corroborated evidence that substantiates the accusation. These may include:
- Police reports
- Social welfare agencies and medical facilities
- Child protective services records
- Prior court orders, such as temporary restraining orders
- Reports from other public agencies or nonprofit organization
If the court finds that within the last five years, an abusive parent perpetrated domestic violence against the other parent, child, or the child’s siblings, then the judge will apply “rebuttable presumption” (an assumption taken to be true unless proved otherwise) that the abusive parent should not have sole or joint custody. To overcome this legal assumption, the court will look at the following factors:
- Did the abusive parent prove that it is in the child’s best interest for him or her to have custody?
- If ordered, did the abusive parent successfully complete the batterer’s treatment, alcohol and chemical dependency program, and parenting classes?
- Is the abusive parent on probation or parole? If so, did the abusive parent comply with all the requirements?
- Is the abusive parent restrained by a protective order? If so, has the abusive parent complied with the order(s)?
- Has the abusive parent committed additional acts of domestic violence?
Domestic Violence Impacts Visitation
Courts are required to grant a parent reasonable visitation rights unless it is not in the best interest of the child. Since it is not in the child’s best interest to be exposed to domestic violence, the court can protect the child by banning overnight visits or requiring supervised visits where a third party must be present to supervise all visits between child and the abusive parent.
If a parent pursues an emergency protection order then evidence of domestic violence can be used to support a temporary award of custody to that parent. The judge may grant supervised visits to the abusive parent. If a custody case is later opened, California policy encourages the court to make the permanent and emergency orders consistent. However, if the judge has reason to be concerned of the child’s safety during the custody case, the judge may take any appropriate actions necessary to protect the child until an investigation is completed, including terminating the abusive parent’s rights. This means a new case is opened where the abusive parent may lose both physical and legal custody. Such rights, although rarely lost, can never be regained.
Keywords: domestic violence in Orange County
Title: How Domestic Violence in Orange County Impacts Child Custody and Visitation
Description: These are the factors affecting a court’s evaluation of physical, verbal or emotional abuse and its effect on child custody and visitation rights.