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January 11, 2024

Can a parent who committed violence get visitation?

When making a visitation order in a case in which an emergency protective order, protective order, or other restraining order has been issued, the court must consider whether it is in the best interest of the child to have unsupervised visitation,  or whether the visitation should be supervised by a third party, suspended, limited, virtual, or denied altogether. Either parent could give the judge the name of a person that s/he thinks would be suitable to be present during visitation but the judge is not required to appoint that person. In determining what type of visitation to order, the judge must consider the nature of the acts that led to the protective order, how much time has passed since the order was issued, and whether the abusive parent has committed further acts of abuse.1 

If you are staying in a domestic violence shelter or in another confidential location, the judge must design the court order in a way to prevent revealing your location and to protect all adults and children living in that location. Additionally, if you are staying in a domestic violence shelter, the judge can only order in-person visitation with the other parent after considering:

  • the abusive parent’s access to firearms and ammunition, including, whether s/he is prohibited by law from having firearms and ammunition;
  • if the abusive parent has violated a protective order issued against him/her and the what type of violation it was; 
  • information produced from a criminal background check, including:
    • prior criminal convictions for certain violent or serious felonies or for misdemeanors involving domestic violence, weapons, or other violence;
    • if s/he has an outstanding warrant;
    • if s/he is currently on parole or probation;
    • if s/he has a registered firearm; or
    • if s/he has a prior restraining order or a violation of a prior restraining order;
    • the “best interest factors;” and 
  • the potential for the confidential location of the shelter being revealed.2

Your child may be able to give the judge his/her preference about the other parent’s visitation as long as the child is of “sufficient age and ability (capacity) to form an intelligent preference.” If the child is over 14 years old and wants to talk to the judge about visitation, the judge must allow the child to do so unless it is not in the child’s best interests. Children under 14 years old might be able to talk to the judge as well.3

If the abusive parent uses drugs or abuses alcohol, the judge could make the parent undergo tests for alcohol and illegal drug use if s/he decides that the parent is a frequent or habitual user. If the tests show that the abuser does use drugs or alcohol, this could be a factor that the judge considers when deciding whether or not to grant him/her visitation. When deciding if the parent is habitually using, one type of evidence the judge will consider is any convictions for illegal drug use or possession within the past five years.4

Note: If you are or were a victim of domestic violence and you believe that your California custody/visitation order puts your child in a dangerous situation with the other parent, you may want to contact the Family Violence Appellate Project. They work with low-income survivors of abuse in California who want to appeal a court order that was issued within the last six months, or who are defending against an appeal filed by the other parent, and who cannot afford to hire an attorney.

1 Cal. Fam. Code §§ 3031(c); 3100(b)
2 Cal. Fam. Code §3100(d)(1), (d)(2)
3 Cal. Fam. Code § 3042(a), (c), (d)
4 See Cal. Fam. Code § 3041.5

Can grandparents get visitation?

Whether or not the parents of the child are married or unmarried, the grandparent will have to prove that s/he has such a close relationship and bond with the grandchild that visitation would be in the best interest of the child. However, if both parents agree that the grandparent should not be granted visitation rights, or if the one parent who the child lives with does not want the grandparent to have visitation, the judge will assume that the visitation of a grandparent is not in the best interest of the child. It is then up to the grandparent to try to change the judge’s mind and prove that the visitation is in the child’s best interests.

However, if the parents are married, there are additional restrictions that the grandparent has to follow. The grandparent can file for visitation only if one or more of the following circumstances exist:

  1. The parents are currently living separately on a permanent basis;
  2. One of the parents has been absent for more than one month without the other spouse knowing where s/he is;
  3. One of the parents joins in the petition with the grandparents - in other words, agrees to the visits;
  4. The child is not living with either parent;
  5. The child has been adopted by a step-parent; or
  6. One of the parents is incarcerated or involuntarily institutionalized.1

1 Cal.Fam.Code § 3104 (a)(1)-(2), (b)(1)-(6)