Custody disputes can be traumatic experiences for anyone, but if your spouse has a history of domestic abuse, the added anxiety can be debilitating. California law provides that convicted offenders may not receive custody without demonstrating with a preponderance of the evidence that it would be in the child’s best interest to give it.

But what if your abusive spouse does not have a conviction? Or what if you have not filed charges for the abuse you or your family suffered? While the process is somewhat more complex, you should still have the opportunity to record the abuse with the court deciding your custody case, and have the judge apply it as a factor in the ruling.

Legal findings of domestic abuse

California law restricts parents from receiving custody in most cases if they have a domestic abuse conviction on record from the past five years. This abuse could be against you as a spouse, against the children or against another family member or partner. But other court rulings will suffice without a conviction. For example, if you have an approved restraining order against the person on file, this will qualify under the law.

Abuse without a prior legal finding

If you do not have any court findings of domestic abuse on record, you may still present your custody court with evidence of abuse. Even without a legal record, a judge may use this when deciding your case.

Collect any evidence you have of abusive behavior — photos of bruises, text messages and recordings, reports from family, friends or professionals and anything else you have. A judge can use this to make a legal finding of domestic abuse against your partner so long as it is relevant to your custody case.

Safety measures and protections

California has established protections for victims of domestic abuse when going through the divorce process. You may bring a support person with you to court or mediation sessions if you choose, and you have the option to attend mediation sessions separately to avoid contact.

If the court insists that your ex-partner retain visitation rights, request supervised visitation with a trusted adult. Request specific guidelines for when and how any contact occurs and how to make any exchanges safely.