How Can Domestic Violence Charges Affect Child Custody?

What is Child Custody? 

Custody can be joint (shared) or sole (awarded to one primary parent). There are two types of custody: legal and physical.

Legal custody is a parent’s right to help make major decisions about a child’s life, like where the child should go to school or whether the child should undergo medical treatment.

Physical custody refers to where the child lives and who provides basic care like bathing and feeding.

Policy Reasoning of the Court Determining Child Custody 

When you are facing or have been convicted of a domestic violence crime, it will undoubtedly be harder for you in court when it comes to obtaining child custody. 

Courts tend to be conservative when granting custody to a parent or guardian with these charges. There is always the concern that if the court does not take strong action, the accused parent could wind up later harming the child. For this reason, courts do tend to be conservative when it comes to granting custody or visitation following accusations of abuse.

According to the California legislature, it is detrimental to a child if domestic violence or abuse is perpetrated in the child’s home. The legislature’s policy is also that all court orders have to be made in a manner that ensures the safety of the child and the child’s family members. Thus, California custody law requires judges to take domestic abuse into account when determining legal and physical custody.

Court’s Responsibility in Child Custody Determinations 

It is the court's responsibility to consider the "best interests of the child" regarding incidents of domestic violence in child custody cases. This means that they must defer to what is best for the child's well-being, welfare, health, and safety. 

Evidence of accusations of domestic violence, whether recent or in the past, are regularly considered in child custody determinations. The court may deny custody to a parent who has been accused of domestic violence if it determines that the parent poses a danger to the child or to the child's other parent, the victim.

Factors Considered in Court for Child Custody Determination 

There are multiple factors that the court takes into account when making the hefty decision of who to grant child custody to, or how to divide child custody time between two parents. 

Some factors include: 

• Whether the alleged instances of domestic violence had an effect on or were directed at the child
• History of abuse by the accused parent or guardian
• Whether the accused continues to pose a danger to the child or the other parent
• The severity and frequency of the domestic violence (which the courts may consider to be a strong indicator of future behavior)
• Whether there's a pending criminal case against the accused
• Any physical evidence of abuse, including photographs
• Police reports documenting incidents of alleged abuse

It is important to note that the courts do not simply take a parent's word for it when considering accusations of domestic violence and child custody. This means that more than  mere words is necessary to prove facts in court. 

Domestic Violence Impact on Child Visitation Rights 

Incidents of domestic violence also impacts whether the accused will have access to visitation. 

When a parent or guardian is accused or convicted of domestic violence, the court has multiple options on how to address the situation.

The court may: 

• Revoke the accused parent's visitation rights, temporarily or long-term
• Order supervised visitation 
• Revise the accused parent's existing visitation order (i.e. by revoking overnight visits)
• Order parenting classes or anger management classes for the accused parent 
• Order the accused parent to participate in domestic violence counseling
• Issue a restraining order or order of protection

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