Custody and Domestic Violence

If a parent has been abusive toward the other parent or a child, it is very important to have a parenting plan in place that will help everyone stay safe.

You may want to talk with a lawyer to find out the best legal way for you to proceed. In most cities and counties in California, there are domestic violence agencies that can provide legal help with custody issues. You can contact the National Domestic Violence Hotline and ask them for domestic violence organizations in your area.

You might also talk to your mediator about parenting plans that include:

  • Supervised visitation;
  • Safe places to drop off or pick up the children; and
  • A parenting plan that does not involve the parents seeing each other (for example, one parent drops the children at school; the other picks them up).

Visit the domestic violence safety planning section of this Online Self-Help Center for more information on safety plans for you and your children. You can also find information about asking for a domestic violence restraining order and responding to a domestic violence restraining order. And click on the topics below for more information.

There are laws that deal with custody and visitation rights of parents in cases of domestic violence. First, the judge must decide if there is domestic violence, and if there is, the judge must follow special rules to decide custody of the children.

The judge will treat your case as domestic violence case if, in the last 5 years:

  • A parent was convicted of domestic violence against the other parent,
  • Any court has decided that one parent committed domestic violence against the other parent or the children.

Even if the domestic violence took place more than 5 years ago, the court can still take that into consideration when making child custody decisions.  Usually, when a judge decides that your case is a domestic violence case, the judge CANNOT give custody (joint or sole custody) to the parent who committed domestic violence. But that parent can get visitation rights.

A judge CAN give joint or sole custody to the parent who committed domestic violence if the parent who was abusive:

  • Proves to the court that giving joint or sole custody of the children to him or her is in the best interest of the children;
  • Has successfully completed a 52-week batterer’s intervention program;
  • Has successfully completed substance abuse counseling if the court ordered it;
  • Has successfully completed a parenting class if the court ordered it;
  • Is on probation or parole and has complied with the terms of probation or parole;
  • Has a restraining order against him or her and has followed the order; and
  • Has NOT committed any further domestic violence.

Read more information about the law in child custody in cases of domestic violence.

Talk to a lawyer about how the law will affect your rights to custody and visitation of your children, whether you are the victim of the domestic violence or the one who committed the abuse. Understanding what the law says and how it applies to your situation can be confusing, and there are important rights at stake. Click here for help finding a lawyer.

If you have to go to mediation (referred to in some courts that provide recommendations as “child custody recommending counseling”) with a person who controls or attempts to control you through force, intimidation, or the threat of violence, or if you have a restraining order, you have the right to ask to meet with the mediator (or child custody recommending counselor) separately from the other parent. Mediators and child custody recommending counselors are trained in the dynamics of domestic violence to protect your safety and the safety of any household member.

If you have experienced domestic violence:

  • Tell your lawyer, if you have one.
  • Tell your mediator, child custody recommending counselor, or the mediation staff as soon as possible.
  • Answer all of the judge's or mediator’s (or child custody recommending counselor's) questions about this issue.
  • You can see the mediator or child custody recommending counselor without the other parent.
  • You can bring a support person with you to your mediation and orientation.

If you are concerned about the physical safety of your children, let the court or mediator or child custody recommending counselor know. The court is charged with making orders in the best interest of children, and information about their safety can be important in this process. It is important to know, however, that it is a crime for a parent to file a false report of child abuse against the other parent. If a mediator or child custody recommending counselor suspects child abuse, he or she may need to report it to the local child welfare agency.

The following resources provide more information on child abuse: