Litigating Child Custody Cases in Divorces with Domestic Violence

When a spouse or domestic partner is violent, one of your first thoughts may be for the safety of your children. Knowing how to safely separate yourself and your kids from an abusive spouse without putting them at risk can be hard, and it can sometimes leave survivors feeling like there is no way out. Find out how to litigate child custody cases in divorces with domestic violence.

Domestic Violence Makes Divorce a Frightening Proposition

Severe domestic violence is all too prevalent in California, and across the country. On average, more than 10 million women and men are physically abused by a spouse or intimate partner each year nationwide. Here in California, more than 4.5 million women have experienced domestic violence at some point in their lives.

Leaving an abusive relationship is never easy. Abusers often use dominance and control techniques to make their victims believe they aren’t able to leave. This could include convincing their victims that:

  • They are alone and no one will help them
  • They can’t afford to support themselves
  • They aren’t strong enough live alone
  • They will never see their children (or pets) again if they leave

The threat of domestic violence also increases as divorce goes from an idea to a reality. Often, an abuser will escalate their behavior if they feel their control over the family slipping. Filing for divorce in domestic violence cases requires strategic planning that includes legal and practical issues to keep everyone safe. However, California legislators have created legal means to give domestic violence survivors a way to escape their circumstances and protect their children from becoming the target of their abusers’ attention.

Domestic Violence Restraining Orders Help Survivors Leave Abusive Homes

If you are in immediate danger, you should call 9-1-1 or contact the police.

However, if the danger of the moment has passed or you do not want to go directly to the police, you may be able to contact a California family lawyer for help receiving a Domestic Violence Restraining Order. You can request this order if you have been abused or threatened with abuse by a:

  • Spouse, domestic partner, co-parent, intimate partner, or roommate (current or former),
  • Parent (mother, father, mother-in-law, father-in-law),
  • Child (including adoptive children), stepchild, son-in-law, or daughter-in-law,
  • Grandparent or grandparent-in-law,
  • Grandchild or grandchild-in-law,
  • Sibling, half-sibling, brother-in-law or sister-in-law,
  • Stepparent

What Counts as Domestic Abuse

Domestic abuse can be spoken, written, or physical, and applies when your abuser has intentionally or recklessly:

  • Physically caused or attempted bodily injury
  • Sexually assaulted you
  • Created reasonable fear of injury
  • Molested you
  • Attacked, battered, or hit you
  • Stalked you
  • Threatened or harassed you
  • Disturbed your peace
  • Destroyed your personal property

Protections Included in a Domestic Violence Restraining Order

A request for a domestic violence restraining order is one of the swiftest legal processes available. By law, a family law judge must decide whether to enter a temporary restraining order within one business day. Many judges will review your request while you wait. This order can prevent your abuser from:

  • Contacting you or going near you, your children, relatives, or other people you live with
  • Possessing guns or ammunition
  • Entering your home
  • Violating existing child custody and visitation orders
  • Cutting off child support or spousal support
  • Taking or destroying your personal property (including pets)

Once the temporary order has been entered, your judge will also schedule a hearing within 21-25 days. At that hearing, you and your family lawyer will need to present evidence to prove the abuse occurred. Often this takes the form of sworn statements from witnesses, live testimony, police reports, or medical records showing the injuries your spouse or intimate partner has caused you. If you are able to prove your case, the judge can extend the domestic violence restraining order for up to 5 years and can enter a child custody order that will continue even longer. This can give you the legal protection you need to remove the abuser from your home and protect yourself and your children.

Domestic Violence Convictions Affect Child Custody in Divorce Cases

Even if you are granted a 5-year restraining order, you will still be married to your abuser when the order expires unless you take that time to file for divorce. If your spouse has been convicted of domestic violence or has had a domestic violence restraining order entered against him or her, it will impact their timeshare and the custody determination.

If your spouse tries to fight for custody of your children, California law requires the judge to weigh their past domestic violence convictions, or a “finding” of domestic violence (such as the entry of a restraining order) before granting him or her joint or sole custody. You will have a chance to litigate child custody in your divorce by showing:

  • There has been domestic violence conviction or finding in the past 5 years
  • Your spouse has violated the terms of the restraining order or probation order
  • Your spouse has used alcohol or drugs in violation of a court order
  • Lack of participation in a court-ordered batterer intervention program or parenting class
  • It is not in your children’s best interests to be in your spouse’s care

Protecting Your Child’s Best Interests

Your divorce attorney can help the court to see how your spouse’s history of domestic violence poses a danger to you and your children when it comes to child custody and visitation. The California best interest factors expressly direct judges to consider your child’s health, safety and welfare, as well as your spouse’s history of abuse toward you, your child, or anyone else in the home. However, it won’t be enough for you to simply stand in front of a judge and tell your story. You should be prepared to prove the abuse occurred with:

  • Police reports
  • Child protective services investigations
  • Court findings or orders
  • Medical records
  • Reports by public or non-profit organizations providing services to domestic violence or sexual assault victims

That’s where a family lawyer with experience representing domestic violence survivors can help. At ADZ Law, LLP, we understand how domestic violence plays into a divorce on a practical and emotional level. We can help you request a domestic violence restraining order, find witnesses who will testify on your behalf, and gather the documents you need to prove your case. We will also stand with you in court so you never have to be alone with your abuser. We invite you to contact ADZ Law, LLP to schedule a consultation to learn more about our team, and how we can help you.