My name is Jon D. Alexander, Esq. and I am an Orange County, California Divorce Attorney. This article is the fifth in a series outlining the divorce process in California. Please be aware that this article is not intended as and should not be relied upon as legal advice or as the creation of an attorney-client relationship.
California Family Code section 3020 mandates that frequent and continuing contact is applicable to custody orders, even in non marital cases. Section 3020, however, states that the primary concern when determining custody is the health, safety and welfare of the children. For example, the court will find that where there is actual danger to the child frequent and continuing contact is not as important as the child's safety. Abuse or Domestic Violence is considered to be overwhelmingly detrimental.
Section 3011 requires the court to make specific stated findings where there is an order of sole or joint custody to a person who is alleged to be an abuser of people or drug, alcohol or other substances. The abuse in question need not be established and proven, merely alleged. Courts, however, are authorized to require supporting evidence of such allegations. The bottom line is that before the Court will order joint or sole custody where allegations of abuse are made, the Court must address the allegations and state why they are not material or are not supported by credible evidence.
So what kinds of abuse are considered by the Court? Anything that is available under the Domestic Violence Prevention Act ("DVPA"). The California Family Code specifically identifies that certain violations of the penal code will prohibit custody or visitation. Family Code Section 3030(b) states that there will be no custody or visitation for a person convicted of Penal Code 261(the rape statute) where a child is resultantly conceived. Family Code Section 7825 states that it is permissible to terminate parental rights of a father convicted of Penal Code 261. There is a conclusive presumption of unfitness.
Family Code section 3044 is an expansive statute, which creates a rebuttable presumption against an award of sole or joint physical or legal custody to a person who has committed domestic violence damaging to the child in question. The domestic violence act must have occurred within the past 5 years. The presumption is rebuttable meaning that the alleged perpetrator may provide evidence that the domestic violence did not damage the child or that there was no finding of domestic violence. Before Family Code Section 3044 applies there must be a finding of domestic violence.
Section 3044 defines domestic violence as intentionally and recklessly causing or attempting to cause bodily injury or sexual assault or to have placed a person in reasonable apprehension of imminent serious bodily injury, or to have engaged in the following behavior: threatening, striking, harassing, destroying personal property, or disturbing the peace of another, for which the court could order an ex parte TRO.
Oftentimes issues that will affect custody arise when one party seeks an ex parte restraining order against the other under Family Code section 6320. These same allegations being made during the TRO proceeding can form the basis of restrictions on custody imposed by 3044. It is important to be aware that section 3044 is rebutted by a showing that the accuser was also involved in domestic violence. If both are perpetrators the presumption is rebutted. So, a proper defense is to demonstrate that the accuser is in fact a perpetrator as well.
Issues that should be addressed in a Section 3044 hearing include: (1) Who pushed whom? (2) Who started the altercation? (3) Who took part in the fight? Section 3044 also provides considerable penalties for false accusations of abuse. And the court must take into account a false abuse accusations conviction (a criminal conviction) when making a custody decision. The accusations must in fact be false and there must be a criminal conviction of the falsity. Section 3044 requires a criminal conviction not merely a finding of falsity by the Family Court Judge.
Section 3027.5 provides that there will not be an adverse custody or visitation merely because a person made a lawful report regarding suspected sex abuse, or took reasonable actions to find out if abuse took place, or sought treatment. Custody and visitation limitations can be imposed only where substantial evidence of intent to interfere through a knowingly false report is shown. The reason is for this heightened standard is to allow people to make charges, even if there are not ultimately true, erring on the side of being overly protective of children.
Family Code Section 3118 describes the impact of child sexual abuse upon custody proceedings. There must be: (1) allegations of serious abuse; (2) a child's statement made to a mandatory reporter; or (3) substantial independent corroboration. It is especially important for family law attorneys to be aware that they must have credible evidence with substantial corroboration before raising the issue. Take the following example, mother makes an allegation. An attorney must determine the nature of the allegation including whether it comes from a mandatory reporter or whether or not there is substantial independent corroboration. If the allegation isn't from a mandatory reporter and/or lacks substantial corroboration then it likely will not satisfy the 3118 standard.
Family Code Section 3046 speaks to the issue where one party leaves the family residence because they are fleeing domestic violence. The statute provides that doing so will not interfere with their ability to obtain custody as long as: (1) The relocation is of short duration; (2) the person who leaves attempts to maintain regular contact; and (3) There is no intent to abandon.
In my next article, I will explain the history and current trends regarding child custody in California including some relevant and interesting case law. In the meantime, if you have any divorce or family law related questions please contact me at your convenience. You can reach me directly at my website linked below or you may email me Jon at oc-familylawyers.com.
California Family Code section 3020 mandates that frequent and continuing contact is applicable to custody orders, even in non marital cases. Section 3020, however, states that the primary concern when determining custody is the health, safety and welfare of the children. For example, the court will find that where there is actual danger to the child frequent and continuing contact is not as important as the child's safety. Abuse or Domestic Violence is considered to be overwhelmingly detrimental.
Section 3011 requires the court to make specific stated findings where there is an order of sole or joint custody to a person who is alleged to be an abuser of people or drug, alcohol or other substances. The abuse in question need not be established and proven, merely alleged. Courts, however, are authorized to require supporting evidence of such allegations. The bottom line is that before the Court will order joint or sole custody where allegations of abuse are made, the Court must address the allegations and state why they are not material or are not supported by credible evidence.
So what kinds of abuse are considered by the Court? Anything that is available under the Domestic Violence Prevention Act ("DVPA"). The California Family Code specifically identifies that certain violations of the penal code will prohibit custody or visitation. Family Code Section 3030(b) states that there will be no custody or visitation for a person convicted of Penal Code 261(the rape statute) where a child is resultantly conceived. Family Code Section 7825 states that it is permissible to terminate parental rights of a father convicted of Penal Code 261. There is a conclusive presumption of unfitness.
Family Code section 3044 is an expansive statute, which creates a rebuttable presumption against an award of sole or joint physical or legal custody to a person who has committed domestic violence damaging to the child in question. The domestic violence act must have occurred within the past 5 years. The presumption is rebuttable meaning that the alleged perpetrator may provide evidence that the domestic violence did not damage the child or that there was no finding of domestic violence. Before Family Code Section 3044 applies there must be a finding of domestic violence.
Section 3044 defines domestic violence as intentionally and recklessly causing or attempting to cause bodily injury or sexual assault or to have placed a person in reasonable apprehension of imminent serious bodily injury, or to have engaged in the following behavior: threatening, striking, harassing, destroying personal property, or disturbing the peace of another, for which the court could order an ex parte TRO.
Oftentimes issues that will affect custody arise when one party seeks an ex parte restraining order against the other under Family Code section 6320. These same allegations being made during the TRO proceeding can form the basis of restrictions on custody imposed by 3044. It is important to be aware that section 3044 is rebutted by a showing that the accuser was also involved in domestic violence. If both are perpetrators the presumption is rebutted. So, a proper defense is to demonstrate that the accuser is in fact a perpetrator as well.
Issues that should be addressed in a Section 3044 hearing include: (1) Who pushed whom? (2) Who started the altercation? (3) Who took part in the fight? Section 3044 also provides considerable penalties for false accusations of abuse. And the court must take into account a false abuse accusations conviction (a criminal conviction) when making a custody decision. The accusations must in fact be false and there must be a criminal conviction of the falsity. Section 3044 requires a criminal conviction not merely a finding of falsity by the Family Court Judge.
Section 3027.5 provides that there will not be an adverse custody or visitation merely because a person made a lawful report regarding suspected sex abuse, or took reasonable actions to find out if abuse took place, or sought treatment. Custody and visitation limitations can be imposed only where substantial evidence of intent to interfere through a knowingly false report is shown. The reason is for this heightened standard is to allow people to make charges, even if there are not ultimately true, erring on the side of being overly protective of children.
Family Code Section 3118 describes the impact of child sexual abuse upon custody proceedings. There must be: (1) allegations of serious abuse; (2) a child's statement made to a mandatory reporter; or (3) substantial independent corroboration. It is especially important for family law attorneys to be aware that they must have credible evidence with substantial corroboration before raising the issue. Take the following example, mother makes an allegation. An attorney must determine the nature of the allegation including whether it comes from a mandatory reporter or whether or not there is substantial independent corroboration. If the allegation isn't from a mandatory reporter and/or lacks substantial corroboration then it likely will not satisfy the 3118 standard.
Family Code Section 3046 speaks to the issue where one party leaves the family residence because they are fleeing domestic violence. The statute provides that doing so will not interfere with their ability to obtain custody as long as: (1) The relocation is of short duration; (2) the person who leaves attempts to maintain regular contact; and (3) There is no intent to abandon.
In my next article, I will explain the history and current trends regarding child custody in California including some relevant and interesting case law. In the meantime, if you have any divorce or family law related questions please contact me at your convenience. You can reach me directly at my website linked below or you may email me Jon at oc-familylawyers.com.
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