Can my sister get full custody if her husband has been violent in the past? 4 Answers as of March 28, 2011

My sister's husband was recently arrested for domestic violence after hitting my sister multiple times with his fists and pushing her into the street. He was arrested and was just released on $10,000 bail. My sister just filed for divorce a few days ago. They have two children together and she is very concerned about maintaining sole custody. What are the chances she could get full custody since he has a violent past? What information can she present to make sure that she gets custody of the kids? Should she get a restraining order, or would that hurt the chances of her getting sole custody?

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Goldberg Jones
Goldberg Jones | Zephyr Hill
It sounds like it would be prudent to get a restraining order if he is a threat to her safety and or the safety of the children. His violent acts and anger problems will make it pretty easy for your sister to get custody but dad will get some visitation. The questions are how much time will dad get? Will his time be supervised? Will his time include overnights with kids?
Answer Applies to: California
Replied: 3/28/2011
Warner Center Law Offices of Donald F. Conviser
Warner Center Law Offices of Donald F. Conviser | Donald F. Conviser
Your sister should retain an experienced Family Law Attorney, to represent her in her divorce case, and to promptly file a request for a Domestic Violence Restraining Order. If she is granted the Domestic Violence Restraining Order, there will be a presumption in her favor that her husband should not get physical or legal custody of the children.

Your sister should also cooperate with the prosecution of her husband for his criminal Spousal Abuse. A conviction of her husband for spousal abuse will also assist your sister in getting full custody of the children, and may reduce her risk of future harm from her husband.
Answer Applies to: California
Replied: 3/28/2011
Michael Apicella
Michael Apicella | Apicella Law and Mediation
She should immediately seek a restraining order. (Hard to believe when the husband was arrested, that an Emergency Protective Order was not issued by the police, and that your sister was not referred to a victim's advocate by the police at the same time, as well as advised to pursue a restraining order). In any event, assuming, as you said, that a restraining order was never sought, or that a Criminal Protective Order has not been issued via the criminal case against the husband (you said he went to jail, so a criminal case must be pending), inform your sister to immediately contact the local domestic violence prevention organization (or victim's advocate organization). That information should be available on her local family court's website. You can also find much domestic violence info here: http://www.courtinfo.ca.gov/selfhelp/protection/dv/ Or, simply call a local family law lawyer so he/she can inform your sister of the very simple process to obtain a restraining order. If she lives in Marin or Sonoma County, tell her to call my office ASAP. More info about custody and restraining orders: Once a TRO (temporary restraining order) is issued as part of applying for a restraining order, your sister will automatically get sole legal and physical custody. At the restraining order hearing, the court will address custody/visitation, and issue more permanent custody orders (at least until the next review hearing). Per California family code section 3044 (which you should look up online. or go here: http://www.courtinfo.ca.gov/selfhelp/protection/dv/documents/3044sheetEN.pdf ), it is presumptively detrimental to children's best interests to grant custody to a person who beats on the other parent. Again, tell your sister to act now by contacting the local women's victim assistance center, the police, the court's self-help center, or a local family law lawyer. Do NOT delay. Based on the facts you mentioned, it is very important to get a restraining order for her and the children's benefit. Also, it should be very straight forward to get a restraining order and sole legal and physical custody of the children based on the facts you stated in your question.
Answer Applies to: California
Replied: 3/28/2011
Law Office of L. Paul Zahn
Law Office of L. Paul Zahn | Paul Zahn
Domestic violence is certainly a reason for limited contact between a parent and child. If your sister is in fear for her safety and that of the children, then she should definitely consider requesting a restraining order. It will not harm her chances of getting sole custody, nor will it necessarily help her. If your sister is in my area and is looking for an attorney, please have her contact me for a free consultation.
Answer Applies to: California
Replied: 3/28/2011
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