The case of H.H. v. A.M. is about two separated parents fighting for custody of their child and determining a proper visiting schedule. The court gave the mother sole custody but allowed the visiting schedule to be joint by giving the father visiting time Tuesday through Friday. This meant the child lived with each parent approximately half the time and therefore undermined the sole custody awarded to the mother. The issue upon appeal from the mother was whether the trial court made an error by allowing the father, who was found to be domestically violent towards the mother, to spend an equal amount of time with their child after awarding the mother sole custody.
The court relied on California Family Code section 3044 to determine whether it was proper to allow the father equal visiting time even when the mother had been awarded sole custody of their child. Family Code 3044 is often used in cases where one of the parties seeking custody has committed domestic violence within the previous five years against the other party seeking custody. Section 3044 allows the judge to give custody to a person who has a domestic violation conviction or decision against them only if the judge believes that it is in the child’s best interest to do so. This means that it is possible for a person who has committed domestic violence to be awarded custody of the child as long as the majority of the factors weigh in their favor.
8 Things that go into determining the fitness of a parent
Here are the 8 things that the judge must consider when determining this decision:
- What is in the child’s best interest?
- Has the person committed any other domestic violence?
- Has the person followed all the terms and conditions of any restraining order?
- Has the person finished a 1-year batterer intervention program?
- Has the person finished an alcohol or drug program if ordered by the judge?
- Has the person finished a parenting class, if ordered by the judge?
- If on probation or parole, has the person followed all terms of probation or parole?
- Does the person still have a firearm or ammunition, in violation of a restraining order?
The problem that occurred, in this case, was that the trial court judge did not go through this 8-factor test when determining the outcome of this case. The court should have weighed the 8 factors in order to determine what was in the child’s best interest and there would have to be a determination that the father proved by a preponderance of the evidence that an award of custody to him would be in the child’s best interest.
Contact an Experienced Wallin & Klarich Child Custody Attorney Today
If you are fighting for legal custody of your child and have a domestic violence conviction, do not assume you will lose custody. As you can see there is still a chance for you to win your case and gain sole or joint custody of your child. However, the odds are usually stacked against you, which is why it is critical that you get the best legal help possible. Wallin & Klarich has devoted over 40 years to successfully defending clients who are fighting for custody of their children. We know all the laws and statutes relevant to child custody cases and know the best defenses to help you obtain the best possible result in your case.
With offices in Orange County, Riverside, San Bernardino, Victorville, West Covina, Torrance, Los Angeles, and San Diego, there is an experienced Wallin & Klarich child custody lawyer available near you who can aggressively fight for you to gain custody of your children and do all we can to keep you from losing your children.
Please contact us at (877) 4-NO-JAIL or (714)587-4068 for a free phone consultation. We will be there when you call.