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Aug

How does a finding of domestic violence between the parties affect their divorce or custody case? Such finding may result in a denial of spousal support to the abuser and affect the abuser’s custodial rights.  California Family Law Code section 3044 provides as follows:

“Upon a finding by the court that a party seeking custody of a child has perpetrated domestic violence against the other party seeking custody of the child or against the child or the child s siblings within the previous five years, there is 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 detrimental to the best interest of the child, pursuant to Section 3011. This presumption may only be rebutted by a preponderance of the evidence.”

In other words, if the Court finds that a parent has inflicted domestic violence against the other parent or the child within the last five years, there is a legal presumption preventing that parent from having sole or joint physical or legal custody of their child(ren).  California’s public policy generally promotes both parents’s having frequent and continuing contact with their children.  This policy is displaced when there is evidence of domestic violence between the parents.

A finding of domestic violence between spouses may also prevent the perpetrating spouse from obtaining spousal support.  Pursuant to Family Law Code section 4320, the Court may rely upon any evidence of domestic violence  (presently or historically) to deny or limit a  spousal support order.  Section 4320 provides that in determining spousal support requests, the Court can look at “(i) Documented evidence, including a plea of nolo contendere, of any history of domestic violence, as defined in Section 6211, between the parties or perpetrated by either party against either party’s child, including, but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party, and consideration of any history of violence against the supporting party by the supported party.”  It is significant to note that domestic violence is not limited to physical abuse.  Domestic violence can also be found if an intimate partner does one of the following:

• Causes or attempts to cause you physical injury;
• Sexually assaults you;
• Makes you fear that you or another person is in danger of immediate, serious physical injury;
• Molests, attacks, strikes, batters (uses force), or stalks you;
• Threatens or harasses you – either in person or through phone calls, emails, etc.;
• Destroys your personal property; and/or
• Disturbs your peace.**

Domestic violence can have a profound impact on its victims.  When there is a custody or divorce case pending, a finding of domestic violence against one party can be the ground upon which the Court makes proper restitution orders for the victims and children affected by the violence.