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Domestic violence and child custody: an FAQ

Domestic violence allegations are troubling for many reasons. One reason is certainly the problem of genuine harm or threat of harm to family members.

That is why California law allows for the possibility of getting a restraining order against an intimate partner or family member.

But domestic violence allegations can also greatly affect child custody decisions. In this post, we will address some key questions about this.

How does California define domestic violence?

There are actually two questions here. One is which types of relationships are included in the law's definition of domestic violence. The other is the types of behaviors that constitute domestic violence.

California law includes a number of different relationships in its definition of domestic violence. Spouses and former spouses are of course included. But so are dating partners, people who have had a child together, and other relatives who live in the same household.

The types of behavior that are included begin with physical assault. But there are other types of abuse or harassment that the law prohibits. This includes verbal threats and unwelcome sexual advances. It can also include other controlling behaviors, such as destroying someone's personal property.

What protections are available?

California law allows for an emergency protective order (EPO) if there is evidence of "immediate and present danger" of violence or abduction. These orders last for 5-7 days.

The law also allows for longer-term domestic violence restraining order. This is a very specific type of restraining order, authorized by California's Domestic Violence Protection Act. It generally orders someone from coming within a certain distance (e.g., 100 yards) from the party who sought the order.

Under certain circumstances, a temporary restraining order for domestic violence can become permanent.

How do domestic violence allegations affect child custody?

A domestic violence restraining order can also apply to children in the household. The application for a TRO can also request temporary custody of minor children. It can also place limits - or outright prohibitions - on visitation by the other parent.

Before such an order can become permanent, however, court-ordered mediation is required.

Restraining orders against domestic violence are not supposed to be used as bargaining chips in child custody disputes.

Unfortunately, that is not always the case. Sometimes a parent will try to get leverage on the other parent by seeking protective orders that aren't really warranted. This may happen even if there is no history of violence and no documented facts to support the allegations.

What kind of evidence of domestic violence do courts require?

Family courts struggle to respond to situations where allegations of domestic violence are involved in custody decisions.

Custody evaluators and judges often fail to take proper account of evidence of domestic violence and its likely effect on children. There are also problems with gender biases, with male evaluators and judges more likely to suspect that domestic violence allegations were fabricated.

Responding to your specific situation

You don't want to engage in a custody fight unless you have to. But if

you are facing a situation where domestic violence allegations affect child custody decisions, it's important to get knowledgeable legal counsel.

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