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Protecting Your Children in California: Custody Considerations with Domestic Violence Restraining Orders

Seeking legal counsel when navigating child custody amidst domestic violence is crucial. California law prioritizes the child’s best interests, and a domestic violence restraining order (DVRO) can significantly impact custody arrangements. This article provides an overview of relevant California laws and considerations for individuals facing this complex situation.

California’s Presumption Against Abusers in Custody Decisions:

California Family Code Section 3044 creates a presumption against awarding sole or joint custody to a parent who has committed domestic violence against the other parent or the child. This presumption can be overcome if the perpetrator demonstrates that:

The perpetrator of domestic violence has demonstrated that giving sole or joint physical or legal custody of a child to the perpetrator is in the best interest of the child pursuant to Sections 3011 and 3020. In determining the best interest of the child, the preference for frequent and continuing contact with both parents, as set forth in subdivision (b) of Section 3020, or with the noncustodial parent, as set forth in paragraph (1) of subdivision (a) of Section 3040, may not be used to rebut the presumption, in whole or in part.

Additional factors which the Court considers in determining custody orders are:

(A) The perpetrator has successfully completed a batterer’s treatment program that meets the criteria outlined in subdivision (c) of Section 1203.097 of the Penal Code.

(B) The perpetrator has successfully completed a program of alcohol or drug abuse counseling, if the court determines that counseling is appropriate.

(C) The perpetrator has successfully completed a parenting class, if the court determines the class to be appropriate.

(D) The perpetrator is on probation or parole, and has or has not complied with the terms and conditions of probation or parole.

(E) The perpetrator is restrained by a protective order or restraining order, and has or has not complied with its terms and conditions.

(F) The perpetrator of domestic violence has committed further acts of domestic violence.

(G) The court has determined, pursuant to Section 6322.5, that the perpetrator is a restrained person in possession or control of a firearm or ammunition in violation of Section 6389.

They have not committed domestic violence within the past two years.

Maintaining their parental role is in the child’s best interests, considering factors like:

The nature, frequency, and severity of the past violence.

The perpetrator’s efforts to prevent future violence.

The history of safe and positive interactions between the child and the perpetrator.

The history of caring for the child’s needs.

The child’s age and attachment to each parent.

Temporary Custody Orders with DVROs:

A DVRO can include temporary custody arrangements while the court determines a long-term plan. These temporary orders often grant the protected parent sole physical and legal custody.

Impact of a Final DVRO on Custody:

A final DVRO remains in effect regardless of any custody orders. This means the perpetrator cannot violate the DVRO’s terms, such as limitations on contact with the child, even if they have visitation rights.

Seeking Legal Guidance:

Navigating child custody matters involving domestic violence is highly complex and requires legal expertise. An experienced family law attorney can advise you on your specific situation, represent you in court, and advocate for your child’s best interests.

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  contact us here