There are generally eight types of domestic violence/abuse: physical, intimidation, child abuse, verbal and emotional, social isolation, religious, male/female privilege (diminishing the victim’s authority and preventing him/her from contributing to the relationship and sexual abuse.)
If you are in the process of divorce and there are minors involved, issues of custody and visitation will be at issue. The court will consider your domestic violence case if, in the past five years (1) a parent was convicted of domestic violence against the other parent, (2) any court has decided that one parent committed domestic violence against the other parent (i.e. prior issuance of a restraining order)
California Family Code Section 3044 is the statutory authority guiding the judge in deciding custody and visitation. If a party seeking custody of a child has committed domestic violence against the other party, the child, or the child’s siblings within the previous five years, a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is against the best interest of the child.
The presumption may be rebutted by a preponderance of evidence. The court shall consider all of the following factors: FC 3044 (b)
- Whether 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.
- Whether he/she has successfully completed a batterer’s treatment program that meets Penal Code Section 1203.097.
- Whether he/she has successfully completed a drug and/or alcohol program.
- Whether he/she has successfully completed a parenting program
- Whether he/she is on criminal probation or parole and whether there has been full compliance.
- Whether there is a protective order in protective or restraining order in full force and compliance thereof.
- Whether there has been prior domestic violence acts.
Your family law attorney may have no criminal law experience. Similarly, the criminal lawyer may not be aware of how a domestic violence conviction affects the divorce case. In fact, some clients will hire two separate attorneys—one for his/her criminal case and another for his/her divorce case. While California is a “no-fault” state, an arrest that leads to a conviction or a guilty plead, will lead an individual to lose legal and physical custody of his/her children.
In fact, I recently substituted in a divorce case in which his prior family law attorney had my client testify to an alleged prior domestic violence incident while he still was “fighting” an ongoing criminal domestic violence case. My client’s testimony during the bifurcated custody trial was “on the record,” meaning a transcript was being created, under oath, and could be used by the prosecutor in the criminal case.
Since I have extensive experience in criminal and family law case, I am purview to the collateral effects of such a testimony to an “open” criminal case. Could his statements have been used against him in criminal court? Of course–as such, his prior divorce attorney should have claimed the “fifth,” and kept my client quiet.
Another example of the criminal/family law cases being intertwined is this case I am finishing up. The wife reported a domestic violence incident that we were prepared to go to trial in the criminal court but at the date of the trial, the prosecutor offered a plea that will eventually dismiss the criminal case. In the meantime, the wife decides to file a restraining order in the family law court about the same incident cited in the criminal case. The restraining order in family court proceeded in a hearing and resulted in the judge ruling against the wife.
The point is this, if you are confronted with allegations of domestic violence and you are going through a divorce, it is incumbent for you to make sure your criminal lawyer and family lawyer (if different attorneys), should be working together. This will ensure that your best interests are met in both courts.
Any questions about criminal or family law, feel free to email me at [email protected] or call my office at 310-601-7144.
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Article originally published in: https://attycastaneda.com/how-a-criminal-domestic-violence-case-impacts-child-custody-visitation-in-family-court/