Your Family Matters.

Navigating Parenting Time in Cases Involving Domestic Violence

On Behalf of | Jul 28, 2023 | Child Custody, Domestic Violence |

Domestic violence, a public health issue worldwide, includes any abusive, forceful, or threatening act inflicted by one family member, dating partner, or household member upon an intimate partner. According to California Family Code § 6203, subd. (b), domestic violence is further characterized as a pattern of coercive and assaultive behaviors extending far beyond physical violence, including, but not limited to, verbal and psychological attacks, economic coercion, stalking, harassing, making incessant telephone calls, destroying personal property, or disturbing someone’s peace.

Cal. Fam. Code § 3044 states that if a parent is found to have engaged in an act of domestic violence against their current spouse or dating partner, or against the children embroiled in the custody case within the past five years, this creates a rebuttable presumption that it is not in the best interest of the children for the parent who committed the abuse to have sole physical or legal custody. This means that a judge would have to issue an order that the non-abusive parent have custody of the child unless the abusive parent can rebut the presumption and provide evidence that it is actually in the child’s best interest to grant them custody rights.

What about the abusive parent’s rights to visitation, (more commonly referred to as parenting time)? Is there a presumption against awarding parenting time to an abusive parent? Generally, the answer is no, and a parent who has been found to have committed domestic abuse against the other parent can still have access to some parenting time. But it is important to note that in light of Celia S. v. Hugo H., 3 Cal.App.5th 655 (2016), California judges cannot simply order a 50-50 visitation schedule without first rebutting the Cal. Fam. Code § 3044 presumption because otherwise this would amount to the functional equivalent of a joint physical custody agreement, which can be detrimental to the child’s best interest if one of the parents has an ascribable finding of abuse on the books. Furthermore, in Celia S., the trial court emphasized that if a noncustodial parent successfully overcomes the § 3044 presumption, the court must state the reasons for its ruling in writing or on the record.

The health, safety, and well-being of any children involved are heavily considered and prioritized.  California trial courts carefully assess any history of domestic violence against the other parent or children, the severity, frequency, and recency of the domestic violence, and any protective measures (such as restraining orders, protective orders, etc.) in place when making decisions regarding parenting time with the noncustodial parent. Courts have the authority to order supervised parenting time with the noncustodial parent. In such circumstances, parenting time with the noncustodial parent may occur in a controlled setting or under the supervision of a neutral third party.

Ultimately, our family courts must grapple with the fundamental question: Would granting parenting time to an abuser be detrimental to the child? Therefore, it is crucial that courts continue to measure the impact of domestic violence on the children as paramount when deciding whether to grant parenting time to a noncustodial parent who has perpetrated domestic violence.