If you’re getting a divorce and your family law case involves domestic violence (spousal abuse or child abuse), you’re probably wondering how the domestic violence will impact your case, especially in regards to child custody. Here, we provide important information about how the laws will affect you.
In California, there are two types of child custody: 1) physical custody (who the child lives with), and 2) legal custody, which refers to which parent makes important decisions on the child’s behalf, such as healthcare, religious upbringing, and education.
Domestic violence is not limited to beating someone; it’s much more. It refers to physical abuse, emotional abuse, and threats by one family or household member against another family or household member. It can also mean abusing the family pets, keeping someone from coming and going, sexual assault, stalking and harassing.
How Judges Decide if There’s Domestic Violence
Do you have a domestic violence case? Your case will be treated as a domestic violence case by the judge if in the past five years:
- Your spouse was convicted of domestic violence against you, or
- Any court has determined that your spouse committed domestic violence against you or your children.
“But what if I never called 911? What if I was too afraid to report the abuse or say something?” In that case, the judge will have to examine the available evidence in your case.
If the judge decides that your case does involve domestic violence (within the past 5 years), he or she will have to follow special rules before deciding on who gets custody of the kids.
Generally, family court judges cannot give custody to the abusive parent, but they can give them visitation. “Is there any chance an abusive parent can get custody?” Yes, a judge has the power to give custody to a parent who committed domestic violence if:
- It’s in the child’s best interests,
- The abusive parent has not committed more domestic violence,
- The abusive parent completed a 52-week batters program,
- The parent has obeyed court orders to complete a drug or alcohol abuse program, or parenting classes, and
- The parent has followed all the conditions of a restraining order, probation or parole.
Related: Do I Need a Domestic Violence Restraining Order?
While it’s rare for an abusive parent to have their parental rights terminated, in extreme cases of child abuse it can happen. To learn more about how domestic violence can impact your child custody case, contact our San Diego divorce and family law firm today.