Child Custody & Domestic Violence (FL 3044(a) Issues)
Updated: Feb 27, 2022
There is a rebuttable presumption, under California law, that a grant of child custody to a domestic violence offender is detrimental to the best interest of the child. This legal presumption applies to a grant of either sole or joint child custody and to both legal and physical child custody (FL 3044(a) summarized). For more information on the differences between sole, joint, legal, and physical child custody, please see Child Custody.
For example, if dad has a domestic violence restraining order (DVRO) sustained against him in family law court, then the court will presume that granting child custody to dad is not in the best interest of the child.
Preponderance of the Evidence: To overcome the presumption of FL 3044(a), the domestic violence abuser will need to show that more likely than not a grant of child custody would actually be in the best interest of the child. In other words, the person who is found to have committed domestic violence must affirmatively produce evidence to overcome the FL 3044(a) presumption.
Note: Without a domestic violence allegation in a child custody dispute, there is usually a presumption that the best interest of the child is to have the child’s parents or legal guardians share legal and physical custody (other limitations on this presumption may apply).
Civil & Criminal Court Allegations: The legal presumption listed in FL 3044(a) applies in child custody disputes; however, a parent does not have to seek a domestic violence restraining order (DVRO) in family law court in order for the presumption to apply. The legal presumption of FL 3044(a) may apply when the domestic violence abuser is convicted in criminal court of any domestic violence crime (i.e. PC 273.5(a), Inflict Corporal Injury to Spouse; PC 243(e)(1), domestic battery, etc.).
For example, if wife is assaulted by her husband, and thereafter, husband is convicted in criminal court of the crime of inflict corporal injury to spouse (PC 273.5(a)), then the family law court will presume that it is against the best interest of husband and wife’s child that husband be granted child custody. It does not matter if wife ever brings a domestic violence restraining order (DVRO) against husband for his abuse against wife.
Note: The presumption of FL 3044(a) applies even if the child for whom child custody is sought is not the direct victim of the domestic violence abuser.
Five Year Limitation: According to FL 3044(a), the presumption found in FL 3044(a) applies for five years after a finding of guilt or no contest in a criminal case. The presumption extends from the date of domestic violence occurrence when no criminal prosecution is sustained against the domestic violence offender (DVRO finding in family law court).
Selected Legal Resources for Child Custody and Domestic Violence
FL 3044(a) [Abbrev.]: Upon a finding by the court that a party seeking custody of a child has perpetrated domestic violence within the previous five years against the other party seeking custody of the child, or against the child or the child’s siblings, or against a person in subparagraph (A) of paragraph (2) of subdivision (a) of Section 3011 with whom the party has a relationship, there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child, pursuant to Sections 3011 and 3020. This presumption may only be rebutted by a preponderance of the evidence.
(b) To overcome the presumption set forth in subdivision (a), the court shall find that paragraph (1) is satisfied and shall find that the factors in paragraph (2), on balance, support the legislative findings in Section 3020.
(1) The perpetrator of domestic violence has demonstrated that giving sole or joint physical or legal custody of a child to the perpetrator is in the best interest of the child pursuant to Sections 3011 and 3020. In determining the best interest of the child, the preference for frequent and continuing contact with both parents, as set forth in subdivision (b) of Section 3020, or with the noncustodial parent, as set forth in paragraph (1) of subdivision (a) of Section 3040, may not be used to rebut the presumption, in whole or in part.
(2) Additional factors:
(A) The perpetrator has successfully completed a batterer’s treatment program that meets the criteria outlined in subdivision (c) of Section 1203.097 of the Penal Code.
(B) The perpetrator has successfully completed a program of alcohol or drug abuse counseling, if the court determines that counseling is appropriate.
(C) The perpetrator has successfully completed a parenting class, if the court determines the class to be appropriate.
(D) The perpetrator is on probation or parole, and has or has not complied with the terms and conditions of probation or parole.
(E) The perpetrator is restrained by a protective order or restraining order, and has or has not complied with its terms and conditions.
(F) The perpetrator of domestic violence has committed further acts of domestic violence.
(G) The court has determined, pursuant to Section 6322.5, that the perpetrator is a restrained person in possession or control of a firearm or ammunition in violation of Section 6389.
(c) For purposes of this section, a person has “perpetrated domestic violence” when the person is found by the court to have intentionally or recklessly caused or attempted to cause bodily injury, or sexual assault, or to have placed a person in reasonable apprehension of imminent serious bodily injury to that person or to another, or to have engaged in behavior involving, but not limited to, threatening, striking, harassing, destroying personal property, or disturbing the peace of another, for which a court may issue an ex parte order pursuant to Section 6320 to protect the other party seeking custody of the child or to protect the child and the child’s siblings.
(2) The requirement of a finding by the court shall also be satisfied if a court, whether that court hears or has heard the child custody proceedings or not, has made a finding pursuant to subdivision (a) based on conduct occurring within the previous five years.
(e) When a court makes a finding that a party has perpetrated domestic violence, the court may not base its findings solely on conclusions reached by a child custody evaluator or on the recommendation of the Family Court Services staff, but shall consider any relevant, admissible evidence submitted by the parties.
Note: Family Code Section 3044 is abbreviated here for brevity. For more information on child custody issues, or FL 3044(a), contact a family law attorney without delay.
Note: Information provided here is not guaranteed to be up-to-date or accurate. We strive to keep this information current and update, but the law changes frequently and error can occur. No attorney - client relationship is created by use of this information. If you are charged with, accused of, or otherwise suspected of, committing domestic violence, of if you are in need of DV lawyer, contact a lawyer without delay.
For more information on child custody as it relates to domestic violence issues contact our divorce and family law attorneys today. There is no charge for an in-office, first visit consultation. Our DV attorneys have handled hundreds of family law cases, including DV cases in both family law and criminal court, in every Inland Empire court. Our lawyers are available every day of the week, including weekend appointments, to answer your questions. Call today.
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