How Does a Domestic Violence Arrest Affect Child Custody in California?
The short answer: a domestic violence arrest in California affects child custody immediately, before any judge has decided whether you did anything wrong. The officer can request an emergency protective order that keeps you away from your home and children for about a week, the criminal court will usually issue a criminal protective order at your first appearance, the other parent can file for a domestic violence restraining order with temporary custody orders in family court, and if a court ultimately finds that you committed abuse, Family Code section 3044 creates a presumption against giving you joint or sole custody for five years. None of that is automatic or permanent, but each step has a short window in which the right move protects your relationship with your children. This guide explains how the criminal case and the custody case interact in Riverside, San Bernardino, Orange, and Los Angeles County, and what to do in the first two weeks.
Two courts, one set of facts. After a domestic violence arrest you may be dealing with a criminal judge at the Riverside Hall of Justice, the San Bernardino Justice Center, or the Central Justice Center in Santa Ana, and at the same time a family law judge at the Riverside Family Law Courthouse, the San Bernardino Justice Center's family division, or the Lamoreaux Justice Center in Orange. The criminal court decides guilt and punishment. The family court decides custody, visitation, and restraining orders. They apply different burdens of proof, but what you say and do in one courtroom is evidence in the other, which is why the two cases must be handled together.
The Emergency Protective Order and the First Week
The EPO can remove you from your children the night of the arrest. When officers respond to a domestic violence call in Riverside, Fontana, Anaheim, or Long Beach, they can telephone a judge for an emergency protective order under Family Code section 6250. The order can require you to stay away from the other parent and the residence, and it can include a temporary order about the care and control of the children. Under Family Code section 6256 the EPO expires at the close of the fifth court day or the seventh calendar day after issuance, whichever is earlier, so it is short, but it sets the pattern for everything that follows.
Do not go back to the house to see the kids. Violating an EPO is a crime under Penal Code section 273.6, and a violation in the first week is the most common way a defensible case becomes an indefensible one. If you need clothes, medication, or work equipment, ask a lawyer to arrange a civil standby with the police department. Our guide on violating a restraining order explains why judges treat these violations so seriously.
Booking, release, and the bail hearing. A domestic violence arrest usually means booking rather than a citation, and the judge must hold an open court hearing before deviating from the bail schedule on felony domestic violence and spousal battery charges under Penal Code section 1270.1. Under In re Humphrey (2021) 11 Cal.5th 135, the court must still consider your ability to pay and less restrictive alternatives. Release conditions commonly include a stay away order, so read the paperwork before you leave the jail. Our San Bernardino County bail guide covers what to expect.
The Criminal Protective Order at Arraignment
Expect a CR-160 at your first court date. At arraignment on a charge such as Penal Code section 273.5 or Penal Code section 243, subdivision (e)(1), the criminal judge will almost always issue a criminal protective order under Penal Code section 136.2 on Judicial Council form CR-160. The prosecutor asks for a full no contact order; the defense asks for a peaceful contact order or, at minimum, an exception for child custody exchanges and court ordered visitation. The judge decides based on the police report, the alleged victim's wishes, and the defense presentation, and because domestic violence arraignments generally require your personal presence under Penal Code section 977, this is a hearing to prepare for rather than walk into.
Whether the children are protected persons. The CR-160 lists the protected persons, and prosecutors sometimes ask to include the children even when the charge involves only the other parent. If your children are named, the order controls whether you can see them at all until a family court says otherwise. The defense should be ready to explain the children's circumstances, propose a safe exchange location, and ask the court to leave custody and visitation to the family court.
How the criminal order and the family court order fit together. The CR-160 form itself states that the criminal protective order takes precedence in enforcement over a conflicting civil or family court order, but the criminal judge can carve out an exception allowing peaceful contact for the safe exchange of children and court ordered visitation as set out in a family court order. In practice, the family court often issues the detailed custody schedule and the criminal court's order permits contact needed to follow it. Getting that exception written into the order early is one of the most important things a defense lawyer does for a parent.
The Domestic Violence Restraining Order in Family Court
The other parent can file a DVRO with custody orders the same week. Separate from the criminal case, the other parent can request a domestic violence restraining order in family court on form DV-100, asking for temporary custody and visitation orders on form DV-105. Under Family Code section 6320 the judge can issue a temporary order the same day without hearing from you, and the temporary restraining order on form DV-110 commonly gives the other parent sole custody with limited or supervised visitation until the hearing, which is set within roughly three weeks under Family Code section 242. Our guide on what happens if a restraining order is filed against you explains how to respond on form DV-120 and prepare for the hearing.
The DVRO hearing is where the presumption is born. A restraining order after hearing on form DV-130 requires the judge to find, by a preponderance of the evidence, that you committed abuse as defined in Family Code section 6203. That finding, not the arrest and not the criminal charge, is what triggers the custody presumption in Family Code section 3044. The DVRO hearing is therefore often more consequential for custody than the criminal case, and it happens faster, sometimes before the criminal discovery has even arrived. See our article on evidence in a restraining order case.
Your Fifth Amendment problem. Everything you say in a family court declaration or on the witness stand at a DVRO hearing can be used by the prosecutor in the criminal case. Defendants who testify in family court to protect their custody sometimes hand the district attorney the admission that convicts them, and defendants who refuse to testify sometimes lose the restraining order hearing by default. There are ways to manage this, including seeking a continuance of the family hearing, presenting third party evidence, and careful declaration drafting, but it requires a lawyer who understands both cases. Our guides on what not to say to police and whether police can use your text messages apply with equal force to what you write in family court.
The Family Code Section 3044 Presumption Explained
What the presumption says. Under Family Code section 3044, when a court finds that a parent seeking custody committed domestic violence against the other parent, the child, or certain other household members within the previous five years, there is a rebuttable presumption that awarding that parent sole or joint physical or legal custody is detrimental to the child's best interest. The presumption applies whether the finding comes from a criminal conviction or from a family court finding by a preponderance of the evidence. It does not by itself bar visitation, but it changes the starting point from equal parenting toward sole custody with the other parent.
Courts must actually apply it. The Court of Appeal has repeatedly reversed judges who found domestic violence and then awarded joint custody anyway. In In re Marriage of Fajota (2014) 230 Cal.App.4th 1487, the court held that once domestic violence is found, the trial court must apply the presumption and cannot award joint legal custody without finding it rebutted. In Celia S. v. Hugo H. (2016) 3 Cal.App.5th 655, the court reversed an order labeled as sole custody with equal timeshare because it was joint custody in substance. And in S.Y. v. Superior Court (2018) 29 Cal.App.5th 324, the court confirmed that a DVRO finding triggers the presumption in the custody case. These cases mean the finding itself, not the judge's general sense of fairness, drives the result.
How the presumption is rebutted. Family Code section 3044 lists what the court considers in deciding whether the presumption has been overcome, and the statute requires the court to find that giving the restrained parent custody is in the child's best interest and to weigh factors including whether the parent has completed a batterer's intervention program, whether the parent has complied with any protective order and with probation or parole, whether the parent has committed further domestic violence, and whether the parent has completed any ordered parenting or substance abuse program. The court must state its reasons on the record. Starting a program voluntarily, documenting compliance with every order, and avoiding any new incident are the practical steps that make rebuttal possible.
The five year window and the criminal conviction. A conviction for Penal Code section 273.5 or Penal Code section 243, subdivision (e)(1), is a domestic violence finding for purposes of the presumption, and the mandatory probation terms under Penal Code section 1203.097, including the 52 week batterer's program and a protective order, become the checklist the family court will use. A plea to a non domestic violence charge, such as disturbing the peace under Penal Code section 415 or a non domestic battery, avoids the automatic finding, which is one reason the charge you plead to matters more than the sentence in these cases. Our guide to plea deals in California explains how to evaluate an offer with custody in mind.
Visitation While the Cases Are Pending
Supervised and exchange orders. Family courts in Riverside, San Bernardino, and Orange County commonly order supervised visitation or exchanges at a neutral location while a domestic violence case is pending, and Family Code section 3100 directs the court, when a protective order is in effect, to consider whether visitation should be limited and to protect the safety of the parties and children during exchanges. Supervised visitation is usually temporary and is often a step toward normal visitation once the criminal case resolves and any program is under way. Our guide on when judges order supervised visitation explains the options and the providers.
Mediation in domestic violence cases. Custody disputes in California go to child custody mediation under Family Code section 3170, and Riverside and San Bernardino County are recommending counties where the mediator reports to the judge. When a protective order is in effect, Family Code section 3181 allows the protected party to meet with the mediator separately and to bring a support person, so the sessions are often held apart. Prepare for mediation as carefully as for the hearing, because the mediator's recommendation carries real weight. Our guide to custody mediation in Orange County describes the process.
Modifying orders later. Temporary custody orders made during a DVRO case or while the criminal case is pending are not permanent. Once the criminal case resolves, the batterer's program is complete, and there have been no further incidents, a parent can ask the family court to modify custody, and the analysis shifts back toward the child's best interest under Family Code section 3011 and Family Code section 3020. See our guide on how to change a custody order in California.
What to Do in the First Two Weeks After a Domestic Violence Arrest
Follow every order to the letter. Do not contact the other parent, directly or through friends or the children, unless a court order expressly allows it. Do not go to the residence. Keep every piece of paper you were given at the jail and at arraignment.
Do not talk to detectives, and do not post. Investigators frequently call within days of the arrest. Decline politely and refer them to counsel. Social media posts about the other parent are used in both courts. Our article on whether you can talk your way out of charges explains why explanations backfire.
Preserve your evidence. Save texts, call logs, photos of injuries to yourself, and the names of anyone who saw or heard the incident. Give them to your lawyer rather than to the police or the other parent. In many cases the evidence shows mutual conduct, self defense, or a false report, and that evidence can defeat both the criminal charge and the DVRO.
Start the program voluntarily and hire one team. Enrolling in a batterer's intervention or anger management program before any court orders it is not an admission, and it becomes rebuttal evidence under Family Code section 3044 if a finding is ever made. Hire a lawyer, or a firm, that will handle the criminal case and the custody case together so the strategy in one does not sabotage the other. Our domestic violence restraining order page and our child custody page describe the family law side, and our criminal defense page covers the criminal side.
Frequently Asked Questions
Will I lose custody of my children because of a domestic violence arrest?
Not automatically. An arrest is not a finding of abuse. Custody is affected by an emergency protective order, a criminal protective order, and any temporary orders in a DVRO case, all of which can be modified. The Family Code section 3044 presumption applies only after a court finds by a preponderance of the evidence, or through a conviction, that you committed domestic violence.
How long does the emergency protective order last?
About a week. Under Family Code section 6256, an EPO expires at the close of the fifth court day or the seventh calendar day after it is issued, whichever comes first. The other parent must file for a DVRO in family court to extend protection beyond that, and the criminal court will usually issue its own protective order at arraignment under Penal Code section 136.2.
Can I see my kids if there is a criminal protective order?
It depends on the order. If the children are not protected persons and the order permits peaceful contact for child exchanges and court ordered visitation, you can see them under the family court schedule. If the order is a full no contact order that names the children, you cannot, and your lawyer should ask the criminal court to modify it or add the visitation exception.
Does a domestic violence conviction mean the other parent gets custody?
It creates a presumption, not a guarantee. A conviction for Penal Code section 273.5 or Penal Code section 243, subdivision (e)(1), triggers the Family Code section 3044 presumption against joint or sole custody for five years. The presumption can be rebutted with evidence such as completing the batterer's program, complying with all orders, and having no further incidents, and the court must state its reasons.
Should I testify at the DVRO hearing while my criminal case is pending?
Only after talking to a lawyer who knows both cases. Testimony and declarations in family court can be used by the prosecutor. Options include seeking a continuance, relying on third party evidence, or testifying narrowly. The right choice depends on the strength of the criminal case and what is at stake in custody.
Can the custody orders be changed after the criminal case ends?
Yes. Temporary orders made during a DVRO or criminal case can be modified once circumstances change, such as completion of the batterer's program, dismissal or reduction of the charge, and a period without incidents. The court then applies the best interest factors in Family Code section 3011 and Family Code section 3020, with the presumption in Family Code section 3044 still in play if a finding was made.
Talk to a Lawyer Who Handles Both the Criminal Case and the Custody Case
Gramling Law Group defends domestic violence charges at the Riverside Hall of Justice, the Southwest Justice Center in Murrieta, the San Bernardino Justice Center, the Rancho Cucamonga and Fontana courthouses, the Central Justice Center in Santa Ana, and the Los Angeles County criminal courthouses, and handles the related restraining order and custody cases in the family courts of the Inland Empire, Los Angeles County, Orange County, and Southern California. Daniel Gramling, Esq. offers flat-fee criminal defense and limited-scope options for both sides of the case. Call (909) 654-4575 or contact us through this website for a consultation.
This article is educational and is not legal advice. Reading it does not create an attorney-client relationship. It addresses California law only.
Related Guides From Gramling Law Group
Learn more about our criminal defense practice serving the Inland Empire, Los Angeles County, and Southern California.
Domestic violence defense and custody in Southern California: Riverside criminal defense attorney, Santa Ana criminal defense attorney, San Bernardino criminal defense attorney, our domestic violence restraining order page, and our Inland Empire criminal defense guide.
Gramling Law Group
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Phone: (909) 654-4575
Serving the Inland Empire, Los Angeles County, Orange County, and all of Southern California except San Diego in family law and criminal defense.
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