Domestic violence can scar families. It is most often thought of as physical—kicking, punching, hitting, sexually assaulting, throwing things, or making threats to do these—but quite often it has other components: mental, emotional, or economic. In some cases, it provides the motivation to get a divorce, and the presence of domestic violence in a family may affect the way courts make decisions about child custody. The family law lawyers at the Calderone Law Firm can advise people in Manhattan Beach and the surrounding communities on the impact that abuse may have.How Domestic Violence May Affect the Rights of Former Spouses
Cases involving domestic violence can be especially challenging for the court to decide. The law tends to side with the victim of the abuse, particularly if there is a police report providing evidence of domestic violence. A parent who has been the victim of domestic violence is more likely to get custody if the behavior is relatively recent and the perpetrator has not received any treatment.
Special rules related to child custody apply when a court determines there has been domestic violence within the past five years against a parent or the children. Under California Family Code section 3044, when the court finds that a parent seeking custody has committed domestic violence against the other parent or against the child or siblings of the child, there is a rebuttable presumption that awarding sole or joint physical or legal custody to the perpetrator is detrimental to the child's best interests.
In order to rebut this presumption, the perpetrator must show by a preponderance of the evidence that denying joint or sole custody is not in the child's best interests. The rebuttal cannot be accomplished by simply arguing that the state prefers frequent, continuing contact with both parents. Factors that should be considered include whether the perpetrator completed a 52-week treatment program for batterers, whether he or she is on probation or parole and compliant with those requirements, whether a protective order is in place and whether the perpetrator has complied with it, whether the perpetrator has committed other or further domestic violence, and whether the perpetrator completed a treatment program for alcohol or drug abuse counseling.
If the victim has taken out a restraining order, there may be added consequences. A victim of domestic violence can ask the court for permission to secretly record conversations with the perpetrator, although this is illegal without a court order. Sometimes a recorded conversation can help a victim seeking sole custody without visitation. In some cases, the judge will not give custody to someone who committed domestic violence but will give that person supervised visitation, taking into consideration whether there is a restraining order in place.
Domestic violence can also affect a spousal support award. There is a rebuttable presumption that a spouse convicted of domestic violence within five years prior to the divorce proceedings should not receive spousal support.Consult a Manhattan Beach Lawyer to Assert Your Rights During Divorce
If there has been domestic violence in your marriage, you may be particularly worried about your spouse getting custody of the kids or asking for spousal support. Abuse is tough for families to recover from. An experienced divorce attorney at the Calderone Law Firm can help Manhattan Beach residents and other individuals protect their interests. We advise clients in Manhattan Beach, El Segundo, Hermosa Beach, Palos Verdes, Redondo Beach, San Pedro, and Torrance. Call us at (310) 706-4101 or via our online form to set up an appointment.