Custody Modifications After Arrest – Procedures, Proof, and Potential Defenses

Modifications to child custody arrangements might be sought after such an arrest – indeed, sometimes adjusting a custody arrangement will be necessary, depending on the circumstances.

A parent’s arrest, especially if it involves violence, substance abuse, or poses a risk to the child’s safety, can lead the court to reconsider the existing custody arrangement between the parents. The court’s primary concern is always to protect and serve the child’s best interests, and a parent’s arrest could impact that. If the time spent with one parent is altered, it may also affect child support obligations, since even more time is spent with one parent versus the other.

Process

In California, if one parent is arrested for domestic violence, the other parent can file a request to modify the child custody order. Emergency orders may be granted if the court believes the arrest poses an immediate threat to the child. This process will include petitioning the court, serving the other parent, and usually attending mediation (though there are exceptions).

Standard of Proof

If you are requesting the modification, you must that modifying the order is in the best interest of the child.  If you are modifying a final custody order, you must show that there has been a significant change in circumstances. A domestic violence arrest may absolutely qualify as a significant change in circumstance.

Potential Defenses

Under California Family Code, there is a rebuttable presumption that a parent who has committed domestic violence within the past 5 years should not have joint or sole physical/legal custody. However, an accused parent can rebut that presumption by showing that they have been rehabilitated and there is evidence that there is no longer a risk.

Other defenses exist as well that may apply to your case.  Contact an experienced attorney to learn more.

Cardwell Steigerwald Young, LLP

The San Francisco child custody and visitation attorneys at Cardwell Steigerwald Young LLP understand the tempestuous environment so many families endure both during, and after divorce and custody proceedings. If you have an issue and need legal guidance, contact the child custody and visitation attorneys at Cardwell Steigerwald Young LLP today.