I’m an immigrant and I’m a victim of domestic violence, what are my rights?

“I’m an immigrant and I think I’m a victim of domestic violence.  Can you tell me what my rights are.”

To what extent does Domestic Violence affect immigration and court ordered determination of child custody and visitation?

Immigration: Domestic Violence as a basic for Asylum

The first time that the U.S. Immigration Court granted asylum on the basis of domestic violence occurred in 1984 (In Re Matter of A & Z) (December 20, 1994) U.S. Immigration Court, VA., A 72-793-219.) When domestic violence was substantial and because of husband’s close ties with the foreign government, the Court granted the petition. Since that landmark decision, it has become more common for the U.S. Immigration Court to grant a legal immigrant status to victims of domestic violence but only in those cases in which the violence is substantial and can be supported by significant evidence.

Domestic Violence: As a consideration regarding child custody and visitation

The Court considering the domestic violence case has the authority to issue appropriate custody and visitation orders pursuant to Family Code Section 6346.

The Courts are divided over the importance of domestic violence in child custody and visitation cases. In some jurisdictions (Washington D.C., New York, and Ohio), evidence of domestic violence is an express condition required to be considered by the court in making a child custody/visitation order.

In California, in 1999, the legislature amended Family Code Section 3011 to include domestic violence as a factor to be determined by the court in making child custody/visitation orders using the best interests of the child test. Further, the same year, California legislature enacted Family Code Section 3044 which sets forth a rebuttable presumption that an award of custody to a person who has perpetrated domestic violence within the past 5 years is detrimental to the best interest of the child.

In determining the presumption the Court is required to consider the following factors:

1. Whether the perpetrator has demonstrated that giving custody is in the best interests of the child.
2. Whether the perpetrator has successfully completed a batterer’s treatment program.
3. Whether the perpetrator has successfully completed a program of alcohol or drug abuse counseling.
4. Whether the perpetrator has successfully completed parenting classes.
5. If the perpetrator is on probation or parole, whether he or she is restrained by a protective order after hearing and has complied with terms and conditions of the court orders.
6. Whether the perpetrator has committed any further acts of domestic violence.

Domestic Violence orders may be extended after the three year period after notice and a hearing, permanently, without a showing of any further abuse pursuant to Family Code Section 6345.