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San Jose Divorce Attorney > Blog > Domestic Violence > How A Domestic Violence Restraining Order Can Affect California Child Custody Disputes

How A Domestic Violence Restraining Order Can Affect California Child Custody Disputes


Domestic violence has a number of legal consequences. For example, it can affect determinations of child custody or visitation rights. Under California law, a judge must apply a “rebuttable presumption” that awarding physical or legal custody of a minor child who has committed an act of domestic violence would be detrimental to that child’s “best interest.”

Basically, if there has been a legal finding that a parent committed any act of domestic violence within the preceding five years, the judge must start with the presumption that the parent should not receive either sole or joint custody. The parent can still try to overcome that presumption by introducing evidence to the contrary. The court will then decide if the parent has overcome the presumption based on a “preponderance of the evidence,” which is the common burden of proof in California civil matters.

Court of Appeals: No “Exceptions” to California’s Rebuttable Presumption Rule

Again, it is important to emphasize that the domestic violence presumption must be applied. A judge cannot simply ignore a parent’s duty to present evidence to overcome the presumption. A recent California appeals court decision, Renee A. v. Robert A., provides a helpful example.

In this case, the parties were in a seven-year relationship that produced a minor child. The mother filed a paternity action against the father in 2018 to establish a legal parental relationship. Three years later, the mother filed two requests for a domestic violence restraining order (DVRO) against the father. A judge denied both requests. The father subsequently filed a request for joint physical and legal custody of the child, which the court granted.

A few months later, in early 2022, the mother again filed for a DVRO. This time, the judge granted the motion, concluding that the father engaged in “unlawful harassment” of the mother and issuing a two-year DVRO. The judge denied the mother’s request for sole custody of the child, however, and expressly declined to apply the rebuttable presumption.

The California Second District Court of Appeal held that was a mistake. Reversing the trial court, the Second District said the judge claimed there were three “exceptions” to the rebuttable presumption mandate applicable to this case. But the Court of Appeals said no such exceptions existed. Indeed, “every supposed exception identified by the trial court is expressly contradicted by existing law, including by the plain language of the statute.”

The Second District further criticized the trial court for failing to consider the mother’s request for child support from the father. Again, the law requires the trial court to determine whether such an order would be in the child’s best interest. Here, the trial court took no action, which again was a legal error.

Contact a San Jose Domestic Violence Attorney Today

Allegations of domestic violence can significantly impact a divorce or child custody case in California. It is therefore important that if you are involved in such a proceeding you work with a qualified San Jose domestic violence attorney. Contact Foster Hsu, LLP, today to schedule a consultation with a member of our family law staff.

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