Domestic Violence & Custody: Overcoming Rebuttal Presumption

Understanding the Court’s Priorities

Custody situations are already incredibly complicated. When there are issues related to domestic violence, they can be even more difficult to navigate. This is especially true when one parent is found guilty of domestic violence against the child, the child’s sibling, or the child’s other parent.

Understandably, the courts take these cases very seriously, and their priority is on protecting the safety and well-being of the child. However, this does not mean that there is never an opportunity for a parent who has previously been found guilty of domestic violence to rehabilitate themselves and regain a positive relationship with their child.

What to Do If You Are a Parent Found Guilty of Domestic Violence

Domestic violence allegations can have serious consequences on custody cases. If you are a parent and have been accused or found guilty of domestic violence, it is important that you secure legal representation as soon as possible. Domestic violence charges can result in a permanent loss of custody and visitation with your child. With so much at stake, you want to avoid taking any risks by not complying with court orders. Therefore, if there are any restraining orders issued against you, it is imperative that you comply with them.

Below we look at what happens when domestic violence has affected someone’s custody rights and how one can move forward from these difficult circumstances.

What Is Rebuttable Presumption?

According to California Family Code § 3044, when the courts find that someone seeking custody “has perpetrated domestic violence within the previous five years against the other party seeking custody of the child, or against the child or the child’s siblings, […] there is a rebuttable presumption that an award of sole or joint custody of a child to [that person] is detrimental to the best interests of the child.” Under this statute, a preponderance of evidence that granting custody to the perpetrator of domestic violence is in the child’s best interest is required to overcome this presumption.

Other factors that may be considered when overcoming rebuttable presumption include:

  • The successful completion of a batterer’s treatment program
  • The successful completion of drug or alcohol abuse counseling
  • The successful completion of parenting classes
  • Whether the perpetrator of domestic violence has complied with all conditions of their probation or parole
  • Whether the perpetrator of domestic violence has complied with all conditions of any existing protective orders
  • Whether the perpetrator has committed any subsequent acts of domestic violence

Overcoming Rebuttable Presumption Can Take Time

Custody cases involving domestic violence take time to resolve. Often, when someone is found guilty of domestic violence, they will be required to attend counseling and/or rehabilitation programs, parenting classes, and may even a period of time on probation. If you are in a position where you have been required to participate in any of these programs, they must be completed before you will be able to demonstrate to the courts that it is in the child’s best interest to grant custody or visitation to you.

Are you in a situation where you must overcome rebuttable presumption to regain custody of your child? Reach out to the Burch Shepard Family Law Group for help with your case. Our compassionate attorneys understand how difficult these cases are, and we are prepared to fight for you and your family.