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Child Custody—“Best Interest of the Child” Standard—Part 2: Abuse & Domestic Violence

This is the second entry in my blog series entitled “California Court’s Consideration in Making Custody Awards.”   As stated in Part 1, I am writing this series due to the number of emails and calls I receive on a weekly basis from California parents regarding their custody cases. It’s my hope to help shed a little light on this contentious issue so that my reader is better able to navigate his/her way in the legal system regarding their custody case and increase their chances of winning in court. This blog post focuses on abuse and domestic violence as it relates to the “Best Interests of the Child” Standard.

First, issues relating to children include legal custody, physical custody, visitation and guideline child support.

A FEW BASICS

The California family-law courts use a legal standard known as the “Best Interests of the Child” Standard. This legal standard undertakes an analysis of numerous factors affecting the best interests of a child, such as health issues, safety issues and welfare issues.  The terms “health,  safety and welfare” are “umbrella” terms encompassing many sub issues. For instance, abuse and domestic violence will also be considered when determining the best interests of a child.

Our legislature declared many years ago that it is the public policy of California to ensure that each child’s health, safety and welfare, to include being free from child abuse and domestic violence in a child’s residence,  be the court’s primary concern in determining the child’s best interests when making physical or legal custody and visitation orders. (Family Code section 3020(a)).

ABUSE: DOMESTIC VIOLENCE

In determining a child’s best interests, the California courts must consider any history of abuse by one parent (or any other person seeking custody) against:

  • Any child to whom he or she is related by blood or with whom he or she has had a care-taking relationship-even if temporary;
  •  The other parent; or,
  •  A parent, current spouse or cohabitant of the parent or other person, or a person with whom the parent or other person has a relationship (dating or engagement).

When such allegations of abuse or domestic violence are made against another parent, there is a prerequisite requirement made by the court that the accusing parent provide substantial independent corroboration by law enforcement or social welfare agencies, courts or medical facilities.  This is very important because of the temptation for a parent to make false allegations against the other parent for purposes of winning sole legal custody of the child.

In situations where a California family-law court grant sole custody to one parent because the court has made a legal finding of abuse and domestic violence, the court is required to state its reasons in writing on “on the record, and the court order must include language that specifies the time, day, place and manner of transfer of a child—to ensure the child’s safety.

LEGAL SIGNIFICANCE OF A CALIFORNIA COURT MAKING A LEGAL FINDING OF ABUSE AND DOMESTIC VIOLENCE

When a California family-law judge makes a legal finding that a  party seeking custody of a child has perpetrated domestic violence against the other party seeking custody of the child or against the child or the child’s sibling within the previous five years, there is a “rebuttable presumption” that an award of sole or joint physical or legal custody of the child to the perpetrator is “detrimental to the child’s best interests” (Family Code section 3011 and 3044(a)).  In determining whether the presumption has been overcome, the court must consider a number of specified factors, addressing the child’s best interest and whether the perpetrator has successfully completed any of variety of programs, complied with any protective order if on probation or parole, and committed any further acts of domestic violence (See Family Code section 3044(b)).

A legal presumption mans that the other party is given an opportunity to “rebut” the presumption with facts and evidence.

A CAUTIONARY WARNING—FALSE ALLEGATIONS OF DOMESTIC VIOLENCE

Many a desperate parent is tempted to make false allegations of abuse against the other parent for purposes of seeking gainful advantage in their custody case. In a word: Don’t!  If the Court learns that a parent made a false allegation of domestic abuse against the other parent, this would be a legal basis (reason) for the court to award sole legal custody to the other parent—resulting in the parent making the false allegation losing all custody!  The reasoning behind such an outcome is this:  from the court’s perspective, for a parent to make such a fraudulent claim is a solid example of the parent not being capable of making decisions that are in a child’s best interests. Also, it’s proof that the parent perjured his or herself to the court. Perjury is a crime—punishable by the courts.

False allegations include, but are not limited to the following: calling the police and filing a false report, calling Child Protective Services and making a false abuse report, and declaring “under penalty of perjury” that the other  parent committed acts of abuse and domestic violence.

In part 3 of California Court’s Consideration in Making Custody Awards, I will be discussing the issues relating to the issues of Contact with Parents, Contact with Siblings and use of Controlled Substances and Alcohol as they relate to the “best interests of the child standard.”

Ms. Garrett is a qualified and experienced California family-law attorney. Click here  if you wish to discuss your California custody matter with Ms. Garrett.

Child Custody–California Courts Consideration in Making Custody Awards–All Blogs

Part 1: “Best Interest of the Child” Standard— Child’s Health, Safety & Welfare

Part 2: “Best Interest of the Child” Standard—Part 2: Abuse & Domestic Violence 

Part 3: “Part 3: Contact With Parents and Siblings, and Use of Controlled Substances or Alcohol”

Part 4:”Parents Gender”

Part 5: “A Child’s Preference

Part 6: Crimes of Parents: Parent is a Registered Sex Offender (or Person Convicted of Child Abuse) or Rapist”

Part 7: “Existing Restraining Orders” 

Legal Disclaimer: Everything on this blog pertains to California law only and is written by an attorney licensed to practice only in the State of California. Further, information provided on this blog post or this website is to be used for general informational purposes only and is not to be construed as legal advice in any way shape or form. The underlying purpose of this blog post is to provide the reader with general information to use in talking with an attorney and/or as a general guide when conducting  their own research on their  particular legal matter.  Finally, keep in mind that if you are not a California resident and/or your  matter is not based in California, the laws may differ in your state. In such cases, it is recommended that you seek legal assistance and/or review information that relates to the laws of your state.

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