Allegations of domestic violence are serious matters that can have a significant impact on the outcome of a child custody case. A recent case out of California’s First District Court of Appeals shows how judges handle custody matters when both parents are alleged to have committed domestic violence.
Husband filed for divorce from Wife in June 2010, bringing to an end an eight-year marriage. “The parties agree their marriage was characterized by ongoing conflict, although they largely blame each other,” the Court later said. Husband had been briefly arrested earlier in the month, following an argument in which he “swatted” Wife on the buttocks with a wooden clothes hanger. Although the incident left a bruise, Wife declined to press charges against Husband. She did, however, obtain a temporary restraining order from him and was awarded sole legal and physical custody over the couple’s two kids pending a hearing in their divorce case.
After a couple rounds of hearings, Wife retained primary legal and physical custody over the kids. Husband was given visitation rights two nights a week and on alternating weekends. He later sought joint custody. A psychologist appointed by the trial court to perform a custody evaluation agreed that the custody should be shared equally between the former spouses. In addition to the doctor’s report, the court also relied on testimony from witnesses and a video presented by Husband that allegedly showed her committing domestic violence. The court called Wife’s behavior “aggressive, threatening, harassing, angry, belittling, raging, provocative, and intimidating.”
Section 3044 of the California Family Code provides a presumption that a parent who has committed domestic violence in the last five years should not be permitted to have sole or joint custody over his or her children. In this case, the trial court said there was evidence that both spouses had committed domestic violence against each other. As a result, the court declined to invoke the Section 3044 presumption.
Affirming the decision on appeal, the First District rejected Wife’s argument that the psychologist’s report should have been thrown out because he was biased against her. The Court said Wife’s claim that the doctor had spoken at a conference on parental alienation syndrome – a condition in which proponents say a child is alienated from one parent, based on indoctrination by the other – wasn’t relevant. The Court shrugged off Wife’s claim that the psychologist purposely treated her less favorably than Husband. “To the extent [Wife] contends [the doctor]’s report treated [the parents’] concerns and allegations in disparate ways, that was a matter for the trial court to consider in deciding what weight to give to the report,” the Court concluded.
If you’re considering seeking a divorce in California, or are grappling with domestic violence and child custody issues, contact San Jose child custody lawyer John S. Yohanan. With more than 30 years of experience, Mr. Yohanan is an accomplished family law attorney who has helped a number of clients resolve child custody, visitation, and other issues on optimal terms. Call our office at (408) 297-0700 or contact us online to schedule a consultation.
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