San Diego Divorce Lawyer Blog
Under California law, the Courts’ driving concern in any child custody case is what is in the best interest of the child. Among other things, this means the Courts will consider whether either parent has a history of domestic violence, and if they do, will presume that it is not beneficial for their child to live with them. The presumption can be rebutted, but only if certain evidence is offered. This was demonstrated in a recent California ruling, in which the Court reversed an earlier ruling that failed to apply the presumption. If you have questions regarding domestic violence in the context of child custody, it is in your best interest to contact an experienced San Diego child custody lawyer to assess your options.
Factual and Procedural History of the Case
It is reported that the husband and wife had two minor children that were born of the marriage. The wife filed a lawsuit seeking a dissolution of the marriage. At the same time, she sought a domestic violence restraining order against the husband via a separate action; the Court dismissed the case, however, due to the wife’s failure to serve the husband. The Family Court granted the dissolution by default and granted the wife sole custody of the children. She then moved with the children to Utah.
Allegedly, the husband stated he did not know about the divorce proceeding and moved to set aside the default. The wife again sought a domestic violence restraining order in Utah and presented the Court with evidence that the husband subjected her to abuse for years. The Utah Court granted the wife a temporary restraining order, while the California Family Court set aside the default and granted the husband joint custody. The wife appealed.
Domestic Violence in the Context of Custody Disputes
The Court of Appeal ultimately vacated the lower Court’s ruling. Under California Family Code 3040, the Courts must issue a custody award that is in the best interest of the child. In doing so, the Courts are encouraged to undertake reasonable efforts to determine whether any restraining order, protective order, or emergency protective order that pertains to the parties or child is in effect.
Further, Family Code Section 3044 dictates that the Courts must presume that it is not in the best interest of a child to grant joint or sole physical or legal custody to a parent that committed an act of domestic violence against the other parent within the past five years. While the presumption can be rebutted, the Courts cannot decline to apply it. In the subject case, though, the trial Court failed to apply the presumption. As such, the Court of Appeal vacated its ruling.
Speak to a Capable California Family Law Attorney
In any custody case, the Court must make a determination that is in the child’s best interest, and if a Court fails to abide by applicable standards, it may provide a basis for an appeal. If you are contending with a custody dispute, you should speak to a lawyer regarding what steps you can take to protect your interests. The capable San Diego family law attorneys of Doppelt and Forney APLC are adept at helping people seek just outcomes in custody cases, and if you engage our services, we will set forth compelling arguments in your favor. You can reach us via our online form or by calling us at 800-769-4748 to set up a free and confidential meeting.