If domestic violence or drug/alcohol abuse is alleged, amended Family Code Section 3011(a) requires courts to consider virtual visitation and grant unsupervised visitation only if the court finds that such visits are in the child’s best interest.
OLD LAW:
If domestic violence or drug/alcohol abuse were alleged (abuse allegations), courts had to consider whether visitations should be monitored and explain on the record or in writing why they were not monitored. If the parties stipulated to custody, this finding was not required.
NEW LAW:
If abuse is alleged, and the court makes an order for sole or joint custody or unsupervised visitations to the accused parent, the court shall state in writing or on the record “that the order is in the best interest of the child and protects the safety of the parties and the child” and specify the time, day, and location for exchanging the child. (FC. 3011(a)(5)(A)). This finding is required even if the parties stipulated in writing or on the record to custody. (Id. at 3011(a)(5)(B)).
Where a protective order is granted, the court shall consider whether visitations to the restrained party should be suspended or denied, supervised or virtual (FC 3100(b)(1)). The part about virtual visitation is new and is defined in FC 3100(e).
It is common to arrive at custody stipulations in cases alleging abuse. Under prior law, where fit parents agree to a parenting plan, it should be entitled to great deference. (Goldberg (2022) Keys to the Kingdom: California Family Law Findings, Orders, and Practice Pointers No. 1.50 p. 121; see also, FC 3061 (parents’ pendente lite custody stipulations accepted absent extraordinary circumstances)). This is no longer true in cases involving abuse allegations. For in-court stipulations, to make the required findings, probably some colloquy between the court and the parties or counsel will be necessary. Out of court written stipulations should include the statement “the parties stipulate, and the court finds that the custody order is in the best interest of the child and protects the safety of the parties and the child.” However, this stipulation is insufficient. Specific facts should be included to support this finding, such as “none of the acts of alleged abuse were directed against the child or in the child’s presence.” This means that the factual basis of the best interest stipulation will itself be a subject for negotiation. Without this best interest stipulation, the court should not sign the stipulated order.
