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New Domestic Violence Statutes - Effect on Support, Custody & Property Rights, Part 2 of 3

As stated in the first installment on this topic, new laws went into effect in California on January 1, 2019, which constitute a significant reform of our domestic violence statutes. That reform continues the tendency of California's legislature to increasingly penalize domestic abusers.

The paradigm shift from "violence" as being the actionable harm, to any type of abuse being subject to judicial action, has been happening for a few years.

We discussed the effect of the new laws on spousal support rights in Part 1. This is Part 2, and here we are discussing the new laws' impact on custody and visitation.

The law which made the changes to the custody portion of the Family Code was A.B. 2044. Prior to the passage of A.B. 2044, the law required a Family Court judge to determine the best interests of the child for purposes of deciding child custody in proceedings brought under the Family Code. In making that determination, existing law did require the court to consider certain factors, including whether either of the child's parents habitually or continually uses alcohol or illegal drugs.

The new laws now require the court to make the "best interest" determination consistent with a greater list of specific findings. And this is big: Family Code Section 3020 subd. (a) has been modified to provide, "[C]hildren have the right to be safe and free from abuse, and that the perpetration of child abuse or domestic violence in a household where a child resides is detrimental to the health, safety, and welfare of the child." This is similar to a provision previously in effect under the Probate Code, employed in guardianship proceedings - but this gives a broader, more explicit right to the child. I think this is a good move; too many parents are focused only on their "rights" with regard to their children; now the children have a countervailing right which can be employed for their protection.

While case law has certainly supported the idea that domestic violence perpetrated in the presence of a child was abuse of the child... we did have a split of authority. For example, some cases held that findings of detriment required physical danger to the child. Other cases went the other direction and held that the child's witnessing domestic violence necessitated a finding of abuse as to the child. When I did a Westlaw search for the term "domestic violence in child's presence," 587 cases came up with that phrase. Back and forth they've gone... but no more. The new Family Code section 3020 language expressly states that "domestic violence in a household where a child resides" is detrimental to the child. Now we aren't debating the harm to the child if the child sees the harm; now we have statutory direction stating that violence in the household, whether in the child's direct presence or not, is detrimental to the child.

Before A.B. 2044 passed, the law contained a rebuttable presumption that an award of sole or joint physical or legal custody of a child to someone who committed abuse against the other party seeking custody, or against the child or the child's siblings within the previous five years, was detrimental to the best interests of the child. Revised Family Code section 3011 extends that presumption to include a person who has committed domestic violence against another person falling within a much broader range of relationships. On top of that, to find that the abuser has successfully overcome the presumption, under Family Code section 3044, the court must receive evidence and make findings that giving sole or joint physical or legal custody of a child to the perpetrator IS in the best interests of the child; and the court must consider other specifically enumerated factors to support the grant of custody to the abuser. The court must state its reasons for finding that the presumption has been overcome in writing or on the record.

And finally, I find it interesting that the new laws require additional, extensive training for people who perform duties in domestic violence matters, including judges, referees, and mediators, among others. Previously the training programs required education in "all aspects of domestic violence." The new law requires that the training must also include education on "the detriment to children of residing in a home with a person who perpetrates domestic violence and that domestic violence can occur without a party seeking or obtaining a restraining order, without a substantiated child protective services finding, and without other documented evidence of abuse."

That's another shift; I cannot tell you how many times I've heard that because there isn't a granted restraining order, or CPS finding, or without other documented evidence, that the abuse is simply unsubstantiated and won't be taken into consideration. But I've been on both sides of that argument, and a good portion of the time that requirement of corroborating evidence has served to protect clients - usually men - falsely accused of domestic violence by their partner, who made the accusation solely to gain an advantage in the custody proceeding. I do see room for abuse of this statute. This worries me.

All in all, the changes do give us Family Law practitioners some further guidance. I don't think these changes reduce the burden on the judges who sit in our Family Law courts, who must try to figure out what's actually happening and to make findings about what custodial arrangement is best for the child. For that, they need evidence - and getting admissible evidence before the court is, after all, the attorney's job.

 

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