Learn How California Courts Deal with Child Custody Issues in Domestic Violence Restraining Order Cases
If domestic violence or drug/alcohol abuse is alleged, amended Family Code Section 3011(a) requires courts to consider virtual visitation and grant unsupervised visitation only if the court finds that such visits are in the child’s best interest.
If domestic violence or drug/alcohol abuse were alleged then the courts had to consider whether visitations should be monitored and explain on the record or in writing why they were not monitored. If the parties stipulated to custody, this finding was not required.
If abuse is alleged, and the court makes an order for sole or joint custody or unsupervised visitations to the accused parent, the court shall state in writing or on the record “that the order is in the best interest of the child and protects the safety of the parties and the child” and specify the time, day, and location for exchanging the child. (FC. 3011(a)(5)(A)). This finding is required even if the parties stipulated in writing or on the record to custody. (Id. at 3011(a)(5)(B)).
Where a protective order is granted, the court shall consider whether visitations to the restrained party should be suspended or denied, supervised or virtual (FC 3100(b)(1)). The part about virtual visitation is new and is defined in FC 3100(e).
COMMENTARY: It is common to arrive at custody stipulations in all custody cases including cases alleging abuse. Under prior law, where parents agree to a parenting plan, it would be entitled to great deference by the judge. Family Code Section 3061 notes parents’ pendente lite custody stipulations should be accepted by the court unless there are extraordinary facts which would show the stipulation is not in the child’s best interest; however, this is no longer true in cases involving abuse allegations. For in-court stipulations, to make the required findings, some extra language will be necessary. Specific facts should be included to support this finding, such as “none of the acts of alleged abuse were directed against the child or in the child’s presence.” This means that the factual basis of the best interest stipulation will itself be a subject for negotiation. Without this best interest stipulation, the court will likely not sign the stipulated order.
If you are facing a Domestic Violence Restraining Order situation as the moving party or the responding party, call us for a free consultation. 310 282 7521, or use the orange form to the right of this post to contact us and schedule it.