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:
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:
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.