Domestic violence is a serious issue that courts in San Diego take into account when determining child custody and visitation. The state’s public policy prioritizes the safety and well-being of children, which means that a finding of domestic violence can significantly affect a parent’s custody rights.
The Presumption Against Awarding Custody to a Domestic Abuser
Under California Family Code § 3044, if a court finds that a parent has committed domestic violence against the other parent, the child, or another household member within the past five years, there is a rebuttable presumption that granting that parent sole or joint custody is detrimental to the child’s best interests.
What This Means in San Diego Custody Cases
- If a parent has been found to have committed domestic violence, they are presumed unfit to have custody.
- The burden shifts to the abusive parent to prove that awarding them custody would still be in the child’s best interests.
- The San Diego court considers several factors when determining whether the presumption has been overcome, including:
- Whether the parent has completed a 52-week batterer’s intervention program.
- Whether they have complied with probation or protective orders.
- Whether they have committed any further acts of domestic violence.
- Whether they are in therapy to address these issues.
- Whether they have taken any parenting or coparenting classes.
- Whether they have completed anger management classes etc.
This presumption applies whether the abuse was physical, emotional, financial, or psychological, so long as the court finds that domestic violence occurred.
Impact on Visitation Rights
Even if a parent is denied custody due to domestic violence, they may still be granted visitation under California Family Code § 3100. However, the court can impose supervised visitation or other restrictions to protect the child.
- In cases of severe abuse, visitation may be denied entirely if it would endanger the child’s safety or emotional well-being.
Key Case Law on Domestic Violence and Custody
Several California cases have reinforced how domestic violence impacts custody determinations:
- In re Marriage of Fajota (2014) – The court held that a history of domestic violence cannot be ignored when making custody determinations, even if the abuse was not directed at the child.
- Montenegro v. Diaz (2001) – This case emphasized that custody orders must be made in the child’s best interests, and a history of domestic violence is a key factor in determining what is best for the child.
- Ellis v. Lyons (2016) – The court reaffirmed that the Family Code § 3044 presumption must be applied when there is a domestic violence finding, ensuring that abusers do not easily gain custody.
Protecting Victims and Their Children
Victims of domestic violence in San Diego have legal options to protect themselves and their children, including:
- Obtaining a Domestic Violence Restraining Order (DVRO) under Family Code § 6320, which can include custody and visitation restrictions.
- Obtaining a Criminal Protective Order if the abuse has led to police involvement.
- Requesting emergency custody orders if there is an immediate danger to the child(ren).
- Documenting all incidents of abuse to support legal claims.
Conclusion
California law, as implemented by our San Diego Courts, prioritizes the safety of children when making custody and visitation decisions, and domestic violence findings carry serious consequences for the abuser to ensure that children are not placed in harmful environments. If you or someone you know is facing custody disputes involving domestic violence, consulting with one of Primus Family Law Group’s Certified Family Law Specialists is crucial to understanding your rights and options and in protecting you and your family. If you need immediate help, contact the National Domestic Violence Hotline at 800-799-7233 or a local San Diego domestic violence resource center.