Disagree. I don't think it's going to be that easy for her to prove she deserves custody. She has repeatedly broken the DVRO, which shows she is not willing to abide by a court order, to the point of having criminal charges laid. And you are wrong on point 6 - it absolutely matters and doesn't have anything to do with the children being a party to the RO. Same for point 7. It's enough she has a DVRO that she has willfully and repeatedly and knowingly broken. As for proving best interest, he has repeatedly shown and has proof of the things she has said and done and even the children are saying she is drinking too much.Not true - she will likely be charged with a 'wobbler' misdemeanour. The rebuttal presumption against custody can be argued against. The key issue is the best interests of the child. There is no physical violence against the children and the children have resided with Alice for the majority of their time for years. The arguments against the rebuttal presumption are:
Unfortunately, Alice has a strong chance to legally overturn the rebuttal presumption on the key item of 'in the best interests of the children'
- Whether the alleged abuser has demonstrated that giving sole custody or joint custody of a child to him or her is in the best interest of the child.
- Whether the alleged abuser has successfully completed a batterer’s treatment program that meets the criteria outlined in subdivision (c) of Section 1203.097 of the Penal Code. Even if not ordered, a batterer’s intervention program is almost universally required by family court judges when a litigant is attempting to overcome the Family Code 3044 presumption. [Not applicable to Alice as no physical violence]
- Whether the alleged abuser has successfully completed an alcohol and chemical dependency program if the court determines that counseling is appropriate. [Not applicable as court has not made this determination - but hopefully will do so]
- Whether the alleged abuser has successfully completed parenting classes if the court determines the classes to be appropriate. [She has completed the required parenting classes. Hopefully the court will order more]
- Whether the alleged abuser is on probation or parole, and whether he or she has complied with the terms and conditions of their probation or parole. This is even more important when the criminal conviction relates to domestic violence. [Not applicable to Alice and unlikely to become applicable - likelihood is misdemeanour wobbler charge]
- Whether the alleged abuser is restrained by a protective order or restraining order, and whether he or she has complied with its terms and conditions. [This is applicable, but again only refers to Ioan and not the children]
- Whether the alleged abuser has committed any further acts of domestic violence. [This is applicable, but again only refers to Ioan and not the children]
She may get 50/50 but there is an equally good chance she won't. She could get 20/80 or nothing at all.