The Impact of Domestic Violence on Child Custody Decisions

Domestic Violence in California

Domestic violence in California is defined as any act of abuse committed by a current or former intimate partner or by a family member, which includes:

• Spouses
• Roommates
• Those involved in a romantic or dating relationship
• A person with whom you share a child
• A child
• Any person with whom you are related by blood or marriage within the second degree

Acts of abuse refer to any actions considered threatening and controlling, which can include the following:

• Stalking
• Harassment
• Destruction or property
• Acts of physical violence
• Sexual assault
• Acts causing intentional fear of injury or that are threatening in nature
• Disturbing the other party’s peace
• Any acts that can be included in a restraining or protective order

How Does Domestic Violence Affect Child Custody?

California family courts prioritize the safety and well-being of children when making custody determinations, particularly in cases involving domestic violence. Under California Family Code § 3020, the legislature has explicitly recognized two competing but related principles: children have both the right to be safe and free from abuse and the right to have frequent and continuing contact with both parents. However, when these principles conflict due to domestic violence, the child's safety takes precedence.

When there is a finding of domestic violence against either a parent or a child, California law creates a rebuttable presumption against awarding custody to the perpetrator. This means the court starts with the assumption that giving custody to an abusive parent would be detrimental to the child's best interests.

This presumption can be overcome, but the burden falls on the perpetrator to prove they have addressed their behavior, typically through completion of batterer intervention programs, anger management, parenting classes, and/or other court-ordered treatment.

Research shows that witnessing domestic violence can traumatize children and lead to behavioral problems, emotional disturbance, and difficulties in school. Importantly, California recognizes that children need not be direct victims to be harmed by domestic violence. Exposure to domestic violence between parents or other household members is itself considered detrimental to children's emotional and psychological well-being. California courts also consider any history of abuse by a parent seeking custody, even if that abuse was directed solely at the other parent or another adult.

Restraining Orders in California

Survivors of domestic violence in California have several legal options for protecting themselves and their children through different types of restraining orders, each serving a specific purpose in their safety journey. These orders include:

• Emergency Protective Orders (EPO): An EPO provides immediate protection in crisis situations and is typically requested by law enforcement at the scene of a domestic violence incident; it remains valid for either five business days or seven calendar days, whichever is shorter, giving survivors crucial time to seek longer-term protection.
• Temporary Ex Parte Restraining Orders: This order offers interim protection while a permanent restraining order case is pending, helping ensure safety during the legal process.
• Permanent Restraining Orders: This order provides long-term protection for up to five years and can include comprehensive protections, including stay-away orders, no-contact provisions (including for children and other named family members), move-out orders for shared residences, and other protective measures tailored to the situation.

Anyone experiencing domestic violence can reach out 24/7 to the National Domestic Violence Hotline at 1.800.799.SAFE (7233) for confidential support, safety planning, and connections to local resources and legal assistance.

Protective Orders Can Lead to Visitation Restrictions

California courts have significant authority to restrict or modify visitation rights when there are active protective orders, recognizing that safety must be the paramount concern. Under California Family Code § 3100, when a parent has obtained a protective order against the other parent, the court can impose strict limitations on visitation to ensure the safety of both the protected parent and the children. These restrictions might include:

• Supervised visitation
• Specific conditions for exchanges
• Suspension of visitation rights entirely until certain conditions are met ( in severe cases)

The existence of a protective order signals to the court that there are serious safety concerns that must be carefully balanced against the general policy favoring frequent contact between children and both parents. When structuring visitation orders in these cases, courts typically require specific safety protocols such as:

• supervised exchanges at police stations,
• professional monitoring of visits, or
• prohibition of contact between the parents during exchanges.