Understanding the Criteria the Court Considers When Granting Custody in When a DVTRO Is Present

When there is an active restraining order enforced on one of the parties in a child custody case by the other party, child custody becomes a little more complicated. In Family Code Section 3044, the Court discusses which criteria are considered to determine how custody should be ordered in such situations. In child custody cases, one of the Court’s greatest concerns is the well-being and best interest of the child. When one party has committed domestic violence to the other party within a five-year period, the Court is hesitant to give that party any custody of the child due to the concern of domestic violence. However, the Court specifies that this disposition to believe the perpetrator of domestic violence would be detrimental to the child can be pushed against, or “rebutted”.

Ways to Rebut the Presumption

To rebut the presumption, there are a few different things the Court looks at. The most important factor is whether granting the perpetrator joint or sole legal and physical custody would be helping the best interest of the child. In other words, if giving the perpetrator the opportunity to see the child is beneficial to the child’s wellbeing, then the Court will use such facts in their decision.

While determining whether sole or joint legal and physical custody awarded to the perpetrator is beneficial to the child is the primary motivation of the Court, there are additional factors that must also be met. The first factor is whether the perpetrator has been to a batterer’s treatment program, which is a 52-week course. Completing such a program can be a serious step in rebutting the presumption, as the action shows the Court your intentions to grow. Another program you can do to rebut the presumption is a drug and alcohol abuse counseling, presuming the Court determines this is needed. If it is needed, it can help rebut the presumption.

Given it applies to your situation and the Court deems it necessary, another class you can take is a parenting course. Such courses indicate to the Court your desire to learn more about being a good parent, which the Court can look at to determine if contact with the perpetrator is beneficial to the child’s wellbeing and is in their best interest. Anger management courses and individual therapy for the perpetrator are other ways of demonstrating your willingness to change and better yourself, so these courses are great ways to help yourself in the eyes of the Court.

If the perpetrator is on parole, then complying with the probation is a good way to help rebut the presumption. If you violate probation, it will not help your case in this way. A straightforward way to help rebut the presumption is to not commit domestic violence. Committing more acts of domestic violence will seriously hurt your chances of the Court deeming it in the best interest of the child to grant you any type of physical or legal custody. Do not violate any firearm orders, such as not possessing firearms. If deemed that you do have a firearm that violates the domestic violence restraining order, then the Court will not look favorably on you.

In doing these various tasks above, someone with a domestic violence restraining order against them can help themselves in the eyes of the Court, making it more likely that they will be granted sole or joint legal or physical custody of their children. If deemed satisfactory by the Court, the presumption can be rebutted.

Resources

For more information, press the link below to read about Family Code Section 3044.

https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=3044&lawCode=FAM