The Family Code defines domestic violence as per se “detrimental” to a child.  Thus, the perpetration of domestic violence in a household where a child resides is detrimental to the child. [Family C. § 3020(a)]  Between two parents, under the Domestic Violence Act, a person found by the court to have committed domestic violence by a preponderance of the evidence within the previous five years against the other parent of the child, the child or children’s siblings must overcome a presumption that a sole or joint legal and physical custody award to him or her would be detrimental to the child. [Fam. C. § 3044(a)]
A parent who has had a domestic violence restraining order issued against him or her falls into this category.  In order to obtain custody of their children said person, must successfully rebut the presumption, to do so the court must consider all of the following factors [Fam. C. § 3044(b)]:
1.    Despite the finding, is it in the best interest of the child to award that parent sole or joint legal or physical custody? [Fam. C. § 3044 (b)(1)]
2.    Has the offending parent successfully completed a batterer’s treatment program meeting criteria outlined in the Pen. C. § 1203.097(c)? [Fam. C. § 3044(b)(2)]
3.    Has the offending parent successfully completed a program of alcohol or drug abuse counseling, if the court determines the class to be appropriate? [Fam. C. § 3044(b)(3)]
4.    Has the offending parent successfully completed a parenting class, if the court determines the class to be appropriate? [Fam. C. § 3044(b)(4)]
5.    Is the offending parent on probation or parole and has he or she complied with the terms and conditions of probation or parole? [Fam. C. § 3044(b)(5)]
6.    Is there a current restraining order against the offending parent and the offending parent complied with its terms and conditions? [Fam. C. § 3044(b)(6)]
7.    Has the offending parent committed any further acts of domestic violence? {Fam. C. § 3044(b)(7)]
It is imperative to note that in this situation, the policy of the state that frequent and continuing contact with both parents is in the best interest of the child [Fam. C. § 3020(b)] cannot be used to overcome the presumption in whole or part. [ Keith R. V. Super. Ct. (H.R.) (2009) 174 CA4th 1047,  1056, 96 CR3d 298, 304]
We hope this gives you a basic understanding of how to rebut the finding of domestic violence against a parent so that a custodial relationship with your children can be resumed.  Clearly this is complex area of law and requires a judicial evidentiary hearing.  If you or a loved one needs help with any aspect of rebutting such a presumption or any type of custody/family law matter, call Wallin & Klarich today.  Wallin & Klarich has a team of highly skilled, aggressive family law attorneys ready to take your call 7 days a week, 24 hours a day!  Wallin & Klarich has been in the business of helping people for over thirty years and we would like to help you. We will be there when you call.