How Can I Rebut the Presumption of Detriment for Domestic Violence?

An individual in the middle of a divorce or custody battle should avoid an allegation of domestic violence. When a former partner has made an allegation of domestic violence, it is beneficial to them to contact an experienced family law attorney. California Family Code (CFC) Section 3044 states that if the court finds a party seeking custody of a child perpetrated domestic violence against the other party seeking custody of the child or the child or the child's siblings within the previous five years, there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to the abuser is detrimental to the best interest of the child.

In plain English, this means that if the court finds you abused your former partner, your child or the child's siblings, it will be very close to impossible to get custody of your child. If you are in this situation, a Family Law attorney can litigate on your behalf.

How do restraining orders and criminal convictions affect my case?

Any type of restraining order alleging you have committed domestic violence is information the family court judge will consider in your custody case. The different types of restraining orders include an Emergency Protective Order (EPO), which can last up to seven days, a temporary restraining order (TRO), which lasts between 20 and 25 days, a permanent restraining order, which can last up to five years and a criminal protective order, which is attached to a criminal case in which charges were filed against the abuser. A criminal protective order lasts the length of the criminal case and usually up to three years after the case. If you have been convicted of a charge of domestic violence, this can affect your child custody case in a negative way.

How does a divorce attorney rebut the presumption?

A divorce attorney looks at a wealth of information and presents evidence regarding the alleged abuser. CFC § 3044 lists the seven factors that the court considers. These are:

1. Whether the alleged abuser has demonstrated that giving sole or joint physical or legal custody of a child to him or her is in the best interest of the child. The child's preference for frequent and continuing contact with both parents or with the noncustodial parent may not be used to rebut the presumption. In plain English, you need evidence that the child would be well off with you despite the alleged abuse.
 

2. Whether the alleged abuser has successfully completed a batterer's treatment program. This is almost automatic and is a must for most judicial officers.
 

3. Whether the alleged abuser has successfully completed a program of alcohol or drug abuse counseling. This burden must be met if the court determines that counseling is appropriate.
 

4. Whether the alleged abuser has successfully completed a parenting class if the court determines the class to be appropriate.
 

5. Whether the alleged abuser is on probation or parole, and whether he or she has complied with the terms and conditions of probation or parole. It is a serious concern if the probation or parole is for a criminal charge of domestic violence against the party's former partner or child.
 

6. Whether the alleged abuser is restrained by a protective order or restraining order, and whether he or she has complied with its terms and conditions.
 

7. Whether the perpetrator of domestic violence has committed any further acts of domestic violence, particularly against the party's former partner, the child or siblings of the child.
 

A Family Law attorney also reminds the judge that the judge cannot make a decision based only on the conclusions or recommendations of Family Court Services staff or a child custody evaluator. In Riverside and San Bernardino counties the court often relies on this information as those counties are reporting counties but the court must make a specific finding regarding Family Code, Section 3044.

What is the standard for a rebuttable presumption?

An experienced Family Law attorney can explain the standard of proof for a rebuttable presumption and how to meet it. The presumption can be rebutted by a preponderance of the evidence. In California, "preponderance of the evidence" means evidence that has more convincing force to it than opposed to it. If the evidence is evenly balanced, a judge must find against the plaintiff, the party who had the burden of proving it.

A lawyer can assist you effectively by finding flaws in the evidence that the court has considered before and improving the standing of evidence that is new to the court. As an example, sometimes a former partner falsely alleges that the opposing party committed domestic violence. It is important to contest the validity of the restraining order so the presumption does not attach in a matter

The alleged abuser's lawyer can show what the former spouse said that was false, ambiguous, vague and biased. This lawyer can also point out that the former partner did not seek a TRO. The divorce lawyer can further show that the former spouse sought contact with the alleged abuser that did not concern the child.

The Family Law attorneys at the Law Offices of H. William Edgar are experienced family law litigation attorneys who have helped clients successfully win custodial rights even after they have been alleged to have committed domestic violence. Please contact the office for a free initial consultation today. 888-251-9618

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