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Should I agree to discontinue pursing a domestic violence charge against my husband in exchange for him to waive custody rights?

San Jose, CA |

Police were called for a domestic violence incident. My husband is offering to not pursue child custody rights for our unborn child if I do not pursue the domestic violence charge against my husband. Is it possible to sign a contract for this agreement and if so, how should I go about doing that? Also, we are currently living in California, but I am moving to Wisconsin where the baby will be born. My husband is moving to Texas and we plan on divorcing.

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Attorney answers 4


Since the baby will be born in Wisconsin you will need to seek the advice of an attorney in Wisconsin. Typically a parent can agree to a zero percent timeshare for visitation but the court's will always reserve jurisdiction over the children until they reach the age of 18, so your ex could come back requesting custody and visitation long after you have dismissed the domestic violence charge. You may want to go to a domestic violence legal client to discuss your options before agreeing to this especially when there is violence between the parents. Call your local bar association for a referral to a free domestic violence clinic for help.


I agree with Ms. Blair that your husband will likely maintain the right to bring you back to court at some future date for custody/visitation. This is because the courts (at least the California courts) look to the child's best interests, and not to any contracts between the parents that one parent now wants to void.

Where I differ from Ms. Blair's opinion is that I see a jurisdictional problem. If you are in WIsconsin and your husband moves to Texas, then the Wisconsin court may determine that it has no jurisdiction over your husband because he is not there.

There is a work around, however, and that is to file in California before either of you leaves.

If you both now reside in California and you file for divorce in California (and serve papers on your husband before he relocates), then California can keep jurisdiction over the issue of your divorce.

Then, after you move to Wisconsin, you might be able to file a motion (here) to transfer the *custody* portion of the case to Wisconsin on the grounds that this is/will be where relevant evidence will be located.

I would not dismiss the DV case, if it were me. In California, a record of DV actually creates a legal presumption that the abusive parent should *not* have custody. I don't know if there is a similar law in Wisconsin, but why would you give this potential advantage up?

I hope this helps.

Legal disclaimer: The response given is not intended to create, nor does it create an ongoing duty to respond to questions. The response does not form an attorney-client relationship, nor is it intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change. Attorney is licensed to practice law only in the State of California. Responses are based solely on California law unless stated otherwise.



It does help a lot. Thank you for taking the time to respond!


Sorry, but there's no such contract. You can't make an agreement regarding the custody of a child of the marriage who hasn't been born yet. If he is found guilty of domestic violence, or if the court issues a domestic violence restraining order against him, the court will consider those facts in making any decision sabout custody.


Hello San Jose...This is an 'agreement' I never endorse. First, unless the father / husband surrenders parental rights to the child in a legal proceeding/filing, he can always come forward at a later time to seek custody/visitation and of course support. Have you filed yet for a divorce? If not, I would wait until you move to Wisconsin and establish your residency there, and then the child's home state option, if Wisconsin has adopted this Act along with many other states. I believe it has, but please check thru a family law atty in Wisconsin. The 'waiver' of domestic violence as a bargain for child custody has never sat well with me, and i don't encourage it here. Once the statutory time has passed, this matter is basically 'under the rug' and if there is another domestic violence event with him, this one will not help you as a 'record.' good luck.

please note there is an attorney disclaimer contained in my website which applies herein. nothing should be construed as there being an atty/client relationship or that atty legal advisements have been made. please review my website for further information.

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