Rebutting the Presumption Against Custody in Domestic Violence Cases

There is a legal presumption that a parent who commits domestic violence should not have custody of a minor child. However, this presumption can be rebutted. Rebutting a presumption means disproving the underlying fact that supports the presumption. In cases involving domestic violence, the presumption is that a parent who commits domestic violence is unfit to have custody of a child. Rebutting this presumption means proving that the offending parent is actually fit to have custody and that such custody would be in the child’s best interest.

An example of rebutting the presumption might involve the offending parent demonstrating that the non-offending parent does not have a strong relationship with the child, and leaving the child in their care would be detrimental. Alternatively, the offending parent may show that the non-offending parent has a substance abuse problem, and that exposure to this issue would be more harmful to the child than exposure to the offending parent.

In addition to proving that the offending parent having custody is in the best interest of the child, the offending parent may be required to participate in certain services and follow all legal requirements. To effectively rebut the presumption against custody, the offending parent should complete and comply with the following:

• A batterer’s treatment program;
• A program of alcohol or drug abuse counseling, if the court determines that counseling is necessary;
• A parenting class, if the court deems it appropriate;
• Compliance with all terms and conditions of probation or parole;
• Compliance with all terms and conditions of any domestic violence restraining orders or protective orders;
• No further acts of domestic violence; and
• No possession or control of firearms or ammunition.

To successfully prove that the presumption against custody has been rebutted, the offending parent will need to present credible evidence. This evidence should include the following:

• Evidence that custody by the offending parent is in the best interest of the child’s health, safety, and welfare;
• Proof that continued separation from the parent is detrimental to the child;
• Documentation of completion of all required programs;
• Evidence of no violations of the law or illegal activities; and
• Any other relevant evidence that supports the rebuttal of the presumption.

Credible evidence refers to any evidence that is admissible under the evidence code and is trustworthy and believable. This includes testimony from reliable witnesses, experts, and representatives from the programs the offending parent participated in, who can speak to their meaningful participation. To make a request and present your evidence, you should prepare and present your case as you would for any other legal matter, hearing, or trial in family law court.