What counts as “domestic violence” in custody hearings?
California family courts take a wide view of what qualifies as domestic violence. It includes physical abuse, emotional control, verbal threats, harassment, stalking, and even online abuse. It also covers financial manipulation, intimidation, and destroying property during arguments.
National Domestic Violence Hotline: 1-800-799-7233
The law doesn’t require a conviction for domestic violence to affect custody. Judges can consider restraining orders, police reports, and credible allegations, especially those that occurred within the past five years.
Under California law, domestic violence isn’t limited to hitting. It’s any behavior that harms, scares, or controls the other parent or the child.
If one parent shows a pattern of fear, coercion, or instability, it can affect their custody rights. California courts are cautious about placing children in an environment that risks further harm.
Bay Area Law Group is a dedicated Family Law Firm in San Francisco serving clients with rock-solid, compassionate legal guidance and representation.
Legal presumption under California Family Code § 3044
California Family Code § 3044 creates a legal hurdle for any parent with a recent history of domestic violence. The court starts with a rebuttable presumption: giving custody to a parent who committed domestic violence is not in the child’s best interest.
This presumption kicks in when there has been:
- A conviction for domestic violence in the last five years
- A restraining order against a parent
- Credible evidence of abuse, even without formal charges
The abusive parent can still ask for custody, but they must prove they’ve met specific legal conditions. All seven statutory factors must be addressed. These include:
- Completion of a batterer’s intervention program
- Successful parenting classes
- Obeying court orders and probation terms
- No new instances of abuse
- Demonstrated ability to act in the child’s best interest
The court won’t overlook or skip these steps. If even one factor is missing or poorly documented, the presumption remains in place. Judges expect detailed evidence and will not take general claims at face value. (1)
How courts apply the presumption
Judges must explain their decision in writing before granting custody to a parent with a domestic violence record. They are required to go through all seven factors and show how each one has been met.
Even when there is no conviction, judges must still take allegations seriously. If they decide to award visitation or custody to an accused parent, they must provide clear reasons backed by case facts. This level of scrutiny protects the child’s safety above all else.
How do courts apply the best interest standard in domestic violence cases?
California Family Code § 3011 outlines what judges must evaluate when deciding custody. If domestic violence is part of the case, the law gives extra weight to protecting the child’s safety and emotional well-being.
Courts look at the nature and frequency of the abuse, the relationship between the child and each parent, and any impact on the child’s mental or physical health. They also consider substance use, co-parenting behavior, and whether the child has strong ties to their home, school, and healthcare providers.
If a parent committed abuse, the judge must explain how giving that parent custody won’t put the child at risk. That explanation must go into the written order. If the abuse is recent or repeated, the presumption against custody usually holds.
Can mediation still happen in domestic violence cases?
Yes, but with safeguards. California requires mediation in custody cases, but parents with a history of abuse don’t have to sit in the same room or speak directly to each other.
The court can allow a support person to join the survivor in mediation. In some cases, parents meet separately with the mediator. If the risk of intimidation or trauma is too high, the court may waive mediation or move straight to a hearing.
Judges can also order supervised visitation, require safe exchange locations, or suspend visits until more information is available. These tools help reduce risk while the case moves forward.
What protections are available through emergency or restraining orders?
When a parent fears immediate danger to themselves or the child, they can request an emergency custody order. Courts handle these requests quickly and can temporarily grant one parent sole custody.
A Domestic Violence Restraining Order (DVRO) can also impact custody. If granted, it may stop the abusive parent from contacting the child or returning to the family home. The court may also suspend visitation or require supervision during parenting time.
These orders are temporary but serious. They show the court that one parent has taken steps to protect the child and provide a safe environment.
Trust Bay Area Law Group For Dedicated Family Law Guidance and Representation
These cases move fast and carry high stakes. A single misstep can change the outcome. An experienced custody attorney helps you stay organized, submit the right documents, and argue your case clearly.
Bay Area Law Group helps parents across San Francisco protect their children and assert their rights in high-conflict custody disputes. If you’re facing a situation involving domestic violence and custody, reach out for a free consultation today. We’re here to help you move forward with confidence.
Reference:
(1) California Code FAM 3044, CA Legislative Information,
https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=3044.&nodeTreePath=10.2.2&lawCode=FAM
