Yes. When a family court custody or visitation case overlaps with a domestic violence arrest or charge, the two cases can affect each other in specific ways: what you say in the family case can be offered in the criminal case, and once charges are filed, a protective order from the criminal court generally takes precedence in enforcement over a family court order, which a later custody or visitation order has to acknowledge.

What you say in family court does not stay in family court

A declaration, written response, or testimony you give in the family court case is not sealed off from the criminal case. Under Evidence Code section 1220, the hearsay rule does not bar your own statement when it is offered against you in a case in which you are a party, and the rule does not require that the statement have been made in that same case. As the defendant, you are a party to the criminal case, so something you wrote or said in the family court matter can be offered against you there.

Juvenile dependency cases are different: testimony by a parent in a dependency proceeding is not admissible as evidence in any other action or proceeding (Welfare and Institutions Code section 355.1(f)).

A different rule covers witnesses. If someone testifies in the criminal case and their account does not match something they said earlier, including in the family court case, the earlier statement can be offered both to challenge the testimony and as evidence in its own right. Generally the witness must have been given a chance while testifying to explain or deny it, or must not yet have been excused from giving further testimony (Evidence Code sections 1235 and 770).

This works in both directions and does not mean anyone is lying in either case. It does mean both cases need coordinated handling, starting with telling your criminal defense lawyer that a family court case exists, what has been filed in it, and what is still coming.

How a criminal protective order fits with a custody order

Once you are charged with a crime involving domestic violence, the criminal court’s protective order in that case outranks, for enforcement purposes, a civil order against you, such as one from family court. There are two exceptions: a qualifying emergency protective order controls to the extent its terms are more restrictive, and a no-contact order of the kind described in Family Code section 6320 is enforced ahead of any other order (Penal Code section 136.2, subdivisions (c) and (e)(2)).

If a family or juvenile court issues a custody or visitation order after the criminal protective order is already in place, that later order has to reference the criminal order and, unless one of those exceptions applies, acknowledge its precedence (Penal Code section 136.2(e)(3)). Courts also follow a Judicial Council coordination protocol that lets a family court order coexist with a criminal protective order, but an order allowing contact with the children must provide for a safe exchange, spell out when, where, and how the exchange happens, and include no terms that would break a no-contact order from the criminal court (Penal Code section 136.2(f)).

In practice, this means you cannot rely on an informal understanding with the other parent about contact, drop-offs, or pickups once a criminal protective order is in effect. Read the exact terms of the protective order, and if a custody exchange is not addressed safely, ask your lawyer to raise it with the family court so a coordinated order can be put in place, rather than assuming the two courts will sort it out on their own or that a family order automatically overrides the criminal one.

The separate custody-presumption question

Separately, if a court finds that a parent seeking custody committed domestic violence within the previous five years against the other parent, the child, or the child’s siblings, among others (a qualifying conviction counts as that finding), Family Code section 3044 creates a rebuttable presumption that awarding that parent sole or joint custody is detrimental to the child’s best interest, a consequence also noted on the firm’s false accusations in domestic violence cases page.

What actually helps

  • Tell your criminal defense lawyer about the family court case immediately, including the case number, the assigned family court, and copies of what has already been filed.
  • Do not skip or ignore the family court case on the theory that the criminal case will make it irrelevant; the two proceed on separate tracks with separate deadlines.
  • Follow the exact terms of any protective order in place, even if the other parent suggests otherwise or a family court proceeding on custody is still pending.
  • Do not agree to informal contact or exchange arrangements that conflict with a criminal protective order; ask your lawyer to seek a coordinated family court order instead.

If a custody case and a domestic violence charge are both part of your situation, the Law Offices of David S. Chesley can review how the two interact. Call (800) 755-5174 to talk through both matters together.