Lawyer Monthly Magazine - February 2020 Edition

For example, many clients come to me not understanding the full range of ramifications that abuse in the home, not directly aimed at the child, can still have on young children who witness domestic violence between their parents. Therefore, even though the act (or acts) of abuse may have been solely between the parents, if the child witnessed it, that can be considered abuse to the child and entitle the child to protection from the abusive parent under the Domestic Violence Protection Act. More and more I see parents making domestic violence claims in the beginning of cases due to the Family Code 3044 presumption, which states that if the Court finds that a parent committed domestic violence within five years against the other parent, and/or the child, there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated the abuse is detrimental to the child’s best interest. This leads me to another tip I often tell my clients: If you find yourself in this situation where you are being wrongfully accused of abuse, immediately start trying to rebut this presumption, even the wrong thing” that they forget to trust their instincts as a parent. For example, I once had a father accuse a mother of neglect because she was going to drive their five-year-old in a car that had the dreaded “check engine soon” light come on. She had custody that day for the first time in a couple of weeks and he was pulling out all the stops to scare her into forfeiting her time. I asked her, “If you weren’t in the middle of custody litigation and you were going somewhere with your child, would you have not gone, simply because the light came on?” Probably not. 2. It isn’t about your time with your child, it’s about their time with their parent. I can’t stress enough how telling it is to judicial officers when a parent uses their limited time in court to talk about why it is so important they get to see their child or spend that precious time talking poorly about the other parent. Focus on why it is so important to the child to have a relationship (not just time, but emotional bond) with their parent – not vice versa. Are there any trends of issues that are coming up more and more in custody litigation? Unfortunately, and fortunately, the fact is that more and more cases involve domestic violence now. I say “unfortunately” for the obvious reasons. It is also a fortunate trend of events because it reflects an expansion of the definition of what constitutes domestic violence and finally acknowledges the serious effects that emotional abuse (which is domestic violence in the State of California) can have on a family, especially young children. 49 FEB 2020 | WWW.LAWYER-MONTHLY.COM An Interview With “If you find yourself in this situation where you are being wrongfully accused of abuse, immediately start trying to rebut this presumption, even before there is a finding by a judge.”