You be the Judge: Domestic Violence & Child Custody Fact Patterns

Fact Patterns for Child Custody Orders and Domestic Violence – You be the Judge

Irvine Divorce and Child Custody Lawyers – Free Consultations

Many of our clients ask us how domestic violence effects a child custody and visitation proceeding.  The answer is usually that there is a resounding effect on child custody orders when a perpetrator of domestic violence seeks child custody and/or visitation orders through the Family Court in Orange County, California.  However, under certain circumstances, the occurrence of domestic violence may have less of an effect than you may think.

Let start with some made-up fact patterns.  We provide three scenarios below of situations where parents seek child custody orders where there is some history of domestic violence in the family.  Think about these fact patterns and what you would do as a the judge in Family Court.  Below the fact patterns, we provide an analysis of how the family court judicial officer in Orange County may likely analyze the case and make orders after applying the law.

Fact Pattern #1:

Aaron and Annabelle are married and have 3 children, Aiden, Anton, and Alyssa.  Aaron and Annabelle have been married for 5 years, and their children range in age from 7 years old to 2 years old.  Aaron works for a biotech company as a scientist in Newport Beach, California, and Annabelle is a stay-at-home mom.  Before turning his life around and attending college to become a scientist, Aaron was a drug dealer for three years and was arrested once for dealing, but was not ultimately charged.  Annabelle has no criminal history, attends church every Sunday with the children (sometimes Aaron attends), but she has her medical marijuana card and smokes marijuana about once every week.  About two months ago, Aaron and Annabelle got into an argument about Annabelle’s marijuana use and Aaron pushed Annabelle over a coffee table.  Annabelle suffered no injuries, but called the police and told them what happened.  The police came to the residence and did not believe Annabelle’s story, and decided not to arrest Aaron.  Aaron denied pushing Annabelle.  Annabelle filed for divorce the next day and also filed a domestic violence restraining order seeking protection from Aaron and removing him from the house.  The temporary restraining order was granted but 20 days later, at the hearing on whether a “permanent” restraining order should be granted, the court denied Annabelle’s request.  Aaron had filed a request for custody orders and the parties presented their statements to the court, each seeking custody of the parties’ three children.  What would you do?

Fact Pattern #2:

Bill and Belinda are not married and have one son, Bart, who is 8 years old.  Belinda attacked Bill with a butter knife on January 15 in the presence of Bart, who witnessed the entire event.  Bill is unemployed and  has been for two years.  Belinda is a school teacher and has a Master’s Degree in psychology.  Bill called the police and Belinda was arrested, even though Bill suffered only a minor scratch from the butter knife.  Bill filed a paternity case (that is what a parent files when they seek to establish “legal” parentage and obtain custody orders) along with a request for a domestic violence restraining order.  At the hearing on the restraining order, Bill testifies and presents evidence that Belinda has been violent with him in the past and has been arrested 4 times previously, one time resulting in a conviction for battery four years ago.  Belinda and her mother, Beatrice, testified that Bill not only has been unemployed for two years, but he often sleeps with prostitutes, uses meth every week, gambles for days on end, has no relationship whatsoever with Bart and spends no time with him, and plays video games all night long at least 4 days a week.  How would you fashion child custody orders?

Fact Pattern #3:

Carl and Catherine were married for 15 years and divorced two years ago.  They have two kids, Caty and Catrina, who are 14 year old twins.  In a post-judgment motion, Carl is requesting that the court modify the current custody orders, which provide that Caty and Catrina live primarily with Catherine and they visit with Carl one day a week, on Saturdays overnight to Sunday night.  Carl wants the girls to live primarily with him.  Carl lives in Irvine and Catherine lives in Laguna Nigel.  During the hearing, testimony was presented by both sides.  Carl stated that the girls want to testify and that they would tell the court that they want to live with Carl.  Carl provided evidence that the girls are suffering in school primarily living with their mother, they are not often allowed out of the home, they have no friends, and they told him that they desperately want to live with Carl.  Catherine testified and presented evidence that over the 15 years of marriage, Carl verbally abused her often, hit her at least twice, and Carl was arrested, charged and convicted once for domestic violence seven years ago.  Catherine previously had three restraining orders placed on Carl.  Catherine provided little additional information and argues that there is a presumption that Carl should not have custody based on the long history of domestic violence.  Carl admitted to all of the domestic violence, but showed the court that he went to anger management class, took a 6 week parenting class, and has gone to counseling every other week.  The children’s therapist testified that the children want to live with Carl primarily.  As an Orange County judge, what would you order?


These three fact patterns would not be abnormal for the court to see on any given day.  The court often has a very difficult task of listening to testimony, weighing the credibility of parties and other witnesses, and examining relevant evidence, especially when children are concerned.  The starting place for any child custody case where domestic violence is involved is California Family Code 3044, which states:

  • 3044.  (a) Upon a finding by the court that a party seeking custody of a child has perpetrated domestic violence against the other party seeking custody of the child or against 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 a person who has perpetrated domestic violence is detrimental to the best interest of the child, pursuant to Section 3011. This presumption may only be rebutted by a preponderance of the evidence.
  • (b) In determining whether the presumption set forth in subdivision (a) has been overcome, the court shall consider all of the following factors: (1) Whether the perpetrator of domestic violence has demonstrated that giving sole or joint physical or legal custody of a child to the perpetrator is in the best interest of the child. In determining the best interest of the child, the preference for frequent and continuing contact with both parents, as set forth in subdivision (b) of Section 3020, or with the noncustodial parent, as set forth in paragraph (1) of subdivision (a) of Section 3040, may not be used to rebut the presumption, in whole or in part. (2) Whether the perpetrator has successfully completed a batterer’s treatment program that meets the criteria outlined in subdivision (c) of Section 1203.097 of the Penal Code. (3) Whether the perpetrator has successfully completed a program of alcohol or drug abuse counseling if the court determines that counseling is appropriate. (4) Whether the perpetrator has successfully completed a parenting class if the court determines the class to be appropriate. (5) Whether the perpetrator is on probation or parole, and whether he or she has complied with the terms and conditions of probation or parole. (6) Whether the perpetrator 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.
  • (c) For purposes of this section, a person has “perpetrated domestic violence” when he or she is found by the court to have intentionally or recklessly caused or attempted to cause bodily injury, or sexual assault, or to have placed a person in reasonable apprehension of imminent serious bodily injury to that person or to another, or to have engaged in any behavior involving, but not limited to, threatening, striking, harassing, destroying personal property or disturbing the peace of another, for which a court may issue an ex parte order pursuant to Section 6320 to protect the other party seeking custody of the child or to protect the child and the child’s siblings.
  • (d) (1) For purposes of this section, the requirement of a finding by the court shall be satisfied by, among other things, and not limited to, evidence that a party seeking custody has been convicted within the previous five years, after a trial or a plea of guilty or no contest, of any crime against the other party that comes within the definition of domestic violence contained in Section 6211 and of abuse contained in Section 6203, including, but not limited to, a crime described in subdivision (e) of Section 243 of, or Section 261, 262, 273.5, 422, or 646.9 of, the Penal Code. (2) The requirement of a finding by the court shall also be satisfied if any court, whether that court hears or has heard the child custody proceedings or not, has made a finding pursuant to subdivision (a) based on conduct occurring within the previous five years. (e) When a court makes a finding that a party has perpetrated domestic violence, the court may not base its findings solely on conclusions reached by a child custody evaluator or on the recommendation of the Family Court Services staff, but shall consider any relevant, admissible evidence submitted by the parties.
  • (f) In any custody or restraining order proceeding in which a party has alleged that the other party has perpetrated domestic violence in accordance with the terms of this section, the court shall inform the parties of the existence of this section and shall give them a copy of this section prior to any custody mediation in the case.

Analyzing Fact Pattern #1:

As the judge in this case, you have a difficult task because neither parent is perfect.  Your job is to make custody orders that are in the best interests of the children – that is always the first consideration.  You should determine whether Family Code 3044 applies, which it does not appear to be applicable due to the fact that there was never a court finding that Aaron committed domestic violence.  You would consider the fact that Annabelle smokes marijuana every week, despite having a medical marijuana card, because there is a presumption that a parent’s “habitual” use of drugs is not in a child’s best interests.  Whether smoking one day a week constitutes “habitual” use is a judgment call for you.  Aaron’s previous drug dealing endeavors may be relevant, depending on how long ago it occurred and most importantly whether that fact would effect the children in any way.  In this fact scenario, it appears both parents have problems but neither seems to be significantly more egregious than the other.  Custody orders should be fashioned on other presumptions, which is that both parents should have a significant role in the children’s lives, they should live in a stable environment, and so forth.

Analyzing Fact Pattern #2:

This is a case of weighing evidence and applying the appropriate standards to fashion custody orders for the eight year old Bart.  Family Code 3044 applies and is very relevant.  Not only was Belinda recently arrested for domestic violence and charges are pending, she has a history of violence.  Your first job as the judge is to advise Belinda that because she has a pending criminal case for attacking Bill with a butter knife, she should not say anything in family court about the incident and she should consult an attorney.  It appears that Belinda wanted to testify anyway in the case, which she did in discussing all the bad things Bill does.  The testimony by Belinda may be believable, but it does not appear that Belinda produced any evidence of her claims.  The testimony by Belinda’s mother might also be believable, but her testimony would likely be perceived right way as biased.  It also does not appear that Belinda produced any evidence to rebut the presumption that she should have legal and/or physical custody (including visitation) of Bart.  As a result, you might strongly consider ordering that Belinda have supervised visitation with Bart and order her to complete a batterer’s intervention course and parenting classes at the least, and you may consider setting a review hearing within six months to see how Belinda’s criminal case turned out and whether she is following your orders.

Analyzing Fact Pattern #3:

Your first step in the analysis is to carefully review Carl and Catherine’s custody orders.  Carl will need to show that there has been a material change in circumstances warranting modification of the custody orders, and if there is a Montenegro order included in the parties’ judgment (which means that the orders are “final” and “permanent”), Carl will have to show a significantly changed circumstance warranting modification.  Here, Carl is requesting a huge change in the girl’s lives.  They would be going to live in a new city with a parent that they only have contact with on part of each weekend.  The fact that the girls are suffering in school, have no friends, are not allowed to leave the house and so on are all extremely relevant and important facts.  Because the girls are 14 years old, they have a statutory right to address the court (unless the court finds on the record that it would be detrimental for them to do so), and because the children’s counselor testified that the children want to live with the father, you should take the children’s wishes into account.  You may choose to order a custody evaluation under Evidence Code 730 and Family Code 3110, et seq., which might seem appropriate here.  The history of domestic violence may be relevant, or perhaps not.  Carl’s conviction was more than 5 years earlier, and the three previous restraining orders may be relevant depending on whether a court made those DV restraining orders permanent and how long ago the restraining orders were filed.  It does appear that Carl provided significant evidence to rebut the presumption, including attending anger management and parenting courses. We hope you found these case studies interesting and fun.

For more information about divorce, child custody, domestic violence and support issues, contact our office today for a free consultation.