Getting a divorce is a stressful and complicated process for most couples. Certain factors and dangerous behaviors by one spouse can instigate and further complicate this process. One major factor that can seriously impact legal determinations in divorce proceedings is domestic violence. When a parent has a restraining order against them, it may prevent him or her from custody or visitation rights.
If you are a victim of domestic violence, you should immediately speak with an experienced Central Valley family law attorney to determine what legal actions you should take to protect your safety and your children.
Domestic Abuse and Restraining Orders
Victims of domestic violence abuse have certain legal rights and options under California state law to protect them against their abuser. A knowledgeable attorney can help an abuse victim get a restraining order or protective order to provide legal protection.
California is considered a no-fault divorce state. As such, a restraining order will not change the fact that a family law court will handle the divorce as one resulting from mutually irreconcilable differences. However, the existence of a domestic violence restraining order can force the court to order the abusing spouse to vacate the home and stay elsewhere. This is a very strict requirement. If the abusing spouse violates such an order, it can result in an arrest and serious consequences in subsequent child custody hearings and rulings.
Evidence of Domestic Violence Can Bar Abuser From Child Custody Rights
If you are an abused parent, you should immediately seek an emergency protective domestic violence restraining order. If granted, you can also ask the judge to choose to award you with temporary custody and arrange only supervised visitation rights for the abusing parent.
Once a child custody case is opened, the judge will carefully review the details of the domestic abuse accusations. There is a legal presumption under California Family Code Section 3044 that if a family court finds evidence that a parent is guilty of domestic violence, he or she should not be granted sole or shared child custody.
It is important to note that under California law, the abuse need not have been targeted against the other parent. Courts can also consider abuse against any of the following relations of the other parent:
- Parent (child’s grandparent)
- Current spouse
- Fiancé or fiancée
- Girlfriend or boyfriend
If you are going through a divorce or planning to file for divorce, it is important that you have a knowledgeable attorney fighting for your rights. For more information or to schedule a complimentary consultation with a Central Valley divorce attorney, please call Gurjit Srai (209) 323-5558 or (559) 449-1447, or complete our online form.