California Family Code § 3044 – Presumption Against Custody for Domestic Abusers

Plain-Language Summary of Family Code § 3044

Intent of the law: California Family Code § 3044 is designed to protect children and survivors of domestic violence. It recognizes that children’s health, safety, and welfare are put at risk when a parent has a history of abusing the other parent or the child. The law creates a strong **rebuttable presumption** (a starting assumption) that giving custody to a parent who has perpetrated domestic violence is **not** in the child’s best interest.

How it works: If a court finds that a parent (or person seeking custody) has committed domestic violence against the other parent, the child, or the child’s siblings within the past five years, § 3044 automatically applies. The judge must presume that awarding that parent **sole or joint physical or legal custody** would be detrimental to the child. In practical terms, the abusive parent ordinarily should **not** get custody. The non-abusive parent is typically awarded sole custody, and the abusive parent may only receive limited visitation (often supervised) if at all. The judge **must** apply this presumption once the domestic violence finding is made – it’s mandatory and not discretionary.

What it presumes: Section 3044 presumes that continuing contact with a parent who has been violent is harmful to the child. This is based on the Legislature’s recognition that domestic abuse in a household is contrary to a child’s best interests. The presumption lasts for 5 years from the domestic violence incident or court finding. It can apply even if the abusive parent and child have an existing close relationship – the law intentionally “errs on the side of caution” to keep children safe from an abusive parent.

Rebutting the presumption: The presumption is “rebuttable,” meaning the abusive parent has an opportunity to prove to the court that giving them custody would *still* be in the child’s best interest despite the past violence. The burden is on the abusive parent to present evidence to overcome the presumption (by a preponderance of the evidence). Family Code § 3044 lays out **seven specific factors** the court must consider when deciding if the presumption has been overcome. These factors include whether the abusive parent has completed a batterer’s treatment program, completed substance abuse counseling (if appropriate), completed parenting classes (if appropriate), complied with terms of probation or parole, complied with any restraining orders, and whether they have committed any further acts of domestic violence. Most importantly, the court must find that placing the child with the abusive parent is in the child’s **best interest**. The law explicitly says a general preference for children to have “frequent and continuing contact” with both parents **cannot** by itself rebut the presumption in favor of protecting the child.

Practical effect: In cases where § 3044 applies, the abusive parent faces a high hurdle to gain any form of custody. The court will typically deny joint or sole custody to that parent unless they convincingly demonstrate rehabilitation and that the child will be safe and better off in their custody. Even if the abusive parent meets some of the factors (for example, completing programs or staying violence-free for some time), the judge will weigh all factors and the child’s safety above all. If – and only if – the judge is satisfied that the presumption has been overcome, the judge must explain **in detail** (in writing or on the record) why it is ordering custody to the formerly abusive parent despite the prior violence.

Examples of Section 3044 in Practice

Example 1 (Restraining Order triggers presumption): A mother obtains a domestic violence restraining order against the father after incidents of abuse. When they later go to court over child custody, Family Code § 3044 applies. The judge will presume that granting custody to the father (the restrained party) would be detrimental to the child. In this scenario, the mother would likely be awarded sole custody, and the father might only receive supervised visitation. The father would have the opportunity to present evidence to **rebut** the presumption – for instance, showing he has gone through anger management and parenting classes, stayed out of trouble, and that the child would benefit from being with him. However, unless he meets the strict requirements of § 3044 and proves it is in the child’s best interest, the court will not award him custody.
Example 2 (Past abuse affects a new custody case): Suppose Parent A was convicted of domestic battery against Parent B three years ago. Now Parent A is seeking joint custody of their child. Under § 3044, the court starts with the assumption that giving Parent A custody is not in the child’s best interest. Parent A must overcome this by showing evidence of rehabilitation and that the child will be safe and cared for. For example, Parent A might present proof of attending a 52-week batterer intervention program, maintaining steady employment and housing, and positive testimony about their parenting. The judge will consider these factors, but if Parent A cannot fully convince the court that circumstances have changed and the child would not be harmed, the judge will deny custody to Parent A.
Example 3 (Judge cannot sidestep the law): Imagine a custody dispute where the court finds that domestic violence occurred – perhaps the father once assaulted the mother. Despite this, the judge initially thinks both parents should stay involved and considers a 50/50 custody split. Family Code § 3044 prevents the judge from simply “looking past” the abuse. The judge cannot award joint custody to the abusive father unless he rebuts the presumption with evidence under the § 3044 factors. If the judge tried to award equal custody without addressing the domestic violence, that decision would violate § 3044 and likely be overturned on appeal. The law ensures that a finding of abuse fundamentally changes the custody analysis: the abusive parent’s rights are secondary to protecting the child. Only if the father proved, for example, that he has completely changed, posed no risk, and that the child would benefit, could the judge even consider joint custody – and the judge would have to make detailed findings explaining that decision.

Notable California Court Opinions Interpreting § 3044

Christina L. v. Chauncey B. (2014) 229 Cal.App.4th 731This case involved a mother who had obtained multiple domestic violence restraining orders against the father (including one in the last five years). The trial court nevertheless awarded joint custody of the children to both parents, without applying the § 3044 presumption. The Court of Appeal reversed the custody order. It held that the existence of a recent domestic violence restraining order **necessarily triggers** the § 3044 presumption that awarding custody to the restrained parent is detrimental. In other words, when a DVRO is in place (or other findings of abuse exist), the trial court is obligated to apply § 3044’s presumption and require the abusive parent to rebut it before considering joint or sole custody in their favor. Failing to do so (as the trial court did here) was legal error. The appellate court emphasized that the issuance of a DV restraining order is a judicial finding of domestic abuse, and under § 3044 the burden shifts to the abusive parent to prove why they should still get custody – absent that proof, the abusive parent should not share custody.
In re Marriage of Fajota (2014) 230 Cal.App.4th 1487In this case, the trial court found that the father had committed domestic violence against the mother, yet still awarded him joint legal custody of their children. The mother appealed, arguing the court ignored § 3044. The Court of Appeal agreed and reversed the custody order. The appellate court held that once domestic violence is found, § 3044’s presumption **must be applied** – it is a mandatory presumption that the trial court has no discretion to disregard. Here, the trial judge’s failure to apply the presumption (and instead giving father joint custody) was an abuse of discretion. The case stands for the principle that § 3044’s protections apply **“in any situation in which a finding of domestic violence has been made”**, even if the abusive parent had not been subject to a restraining order at the time. The Fajota opinion strongly reinforced that courts should not award joint or sole custody to a proven abuser unless that parent meets the heavy burden of rebutting the presumption with evidence. Simply put, ignoring § 3044 is reversible error.
Celia S. v. Hugo H. (2016) 3 Cal.App.5th 655This case addressed a scenario where a trial court tried to work around § 3044 in crafting a custody arrangement. After finding that the father had committed domestic violence, the trial court awarded the mother sole legal custody **in name**, but gave the father a 50/50 timeshare with the children under the label of “visitation.” In effect, the court allowed joint physical custody without calling it that. The mother appealed, and the Court of Appeal reversed that arrangement. The appellate court made clear that courts **cannot evade § 3044** by labeling an equal custody split as “visitation.” Any order that results in the children spending roughly equal time with both parents is considered joint physical custody, and § 3044 flatly presumes such an arrangement is not in the child’s best interest when one parent is an abuser. Hugo H. confirms that a 50/50 timeshare with an abusive parent is prohibited unless that parent rebuts § 3044. It also emphasized that the § 3044 presumption remains in effect for the full five-year period even if a restraining order has expired. This case is often cited to remind courts that the **substance** of a custody order (how much time an abuser gets with the child), not the label, determines whether § 3044 applies.
Ellis v. Lyons (2016) 2 Cal.App.5th 404Ellis v. Lyons was a case where the mother and child lived out-of-state, and an out-of-state court had made findings that the father committed domestic violence. When the custody matter came to California, the California family court did not properly apply § 3044. The Court of Appeal clarified two important points: (1) An out-of-state court’s finding of domestic violence **does** trigger California’s § 3044 presumption. California courts must give full effect to a DV finding from another jurisdiction and presume the abusive parent should not get custody. (2) The appellate court also held that a trial court erred by relying (even “in part”) on the general policy favoring frequent and continuing contact with both parents as a reason to grant the abusive parent custody. The opinion explained that **under no circumstances** can the “frequent contact” policy (Family Code § 3020(b)) be used to overcome or outweigh § 3044’s presumption. Doing so is legal error because the legislature has made clear that protecting children from domestic violence takes priority. As a result, the Court of Appeal reversed the lower court’s order and told the trial court to reconsider custody using the proper § 3044 framework (and without giving undue weight to keeping both parents involved).
Jaime G. v. H.L. (2018) 25 Cal.App.5th 794This significant case involved a family court that acknowledged the father was a domestic abuser (and even issued a restraining order to protect the mother) but then awarded joint custody of the couple’s son to the father, giving him the majority of parenting time. The trial court attempted to justify this by focusing on the child’s best interest (stability, school attendance, etc.) without explicitly working through all the § 3044 factors on the record. The mother appealed, and the Court of Appeal reversed the custody order. Jaime G. v. H.L. underscored that if a court is going to find the § 3044 presumption overcome, it must make **specific findings on each of the seven statutory factors**. In this case, the trial judge had only really addressed the “best interest of the child” factor and had not gone through the other factors (like whether the father had completed a batterer’s program, whether he was on probation, etc.). The appellate court held that this was improper – a court cannot simply jump to a best-interest analysis or cut short the required inquiry. It must treat § 3044 as a **mandatory checklist** and explicitly state why each factor does or doesn’t support giving custody to the abusive parent. Because the trial court failed to do that (partly due to a chaotic hearing where the judge was interrupted), the case was sent back down. This opinion was so influential that the Legislature amended § 3044 to codify the Jaime G. requirement: now the statute itself (subdivision (f)) mandates that courts, when finding the presumption overcome, record their reasons as to each factor. Jaime G. ensures that trial courts fully grapple with the issue of domestic violence before allowing an abuser custody, which strengthens protections for survivors and children.

Full Text of California Family Code § 3044

3044(a). 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 as described in Section 3011(a)(2)(A) 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.

3044(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 (which state that the health, safety, and welfare of children and victims of domestic violence are paramount).

(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. **Important:** In determining the child’s best interest, the preference for frequent and continuing contact with both parents (Section 3020(b)), or with the noncustodial parent (Section 3040(a)(1)), **may not** be used to rebut the presumption, in whole or in part.

(2) Additional factors – the court shall consider, and on balance of these factors decide whether the presumption is overcome:

(A) Whether the perpetrator has successfully completed a batterer’s treatment program that meets the criteria of Penal Code § 1203.097(c).

(B) Whether the perpetrator has successfully completed a program of alcohol or drug abuse counseling, if the court deems such counseling appropriate.

(C) Whether the perpetrator has successfully completed a parenting class, if the court deems such a class appropriate.

(D) Whether the perpetrator is on probation or parole, and whether the perpetrator has complied with the terms and conditions of probation or parole.

(E) Whether the perpetrator is restrained by a protective order or restraining order, and whether the perpetrator has complied with the terms and conditions of that order.

(F) Whether the perpetrator of domestic violence has committed any further acts of domestic violence since the original incident.

(G) Whether 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 (firearm restrictions relating to domestic violence).

3044(c). For purposes of this section, a person has “perpetrated domestic violence” when he or she is found by the court to have intentionally or recklessly caused or attempted to cause bodily injury, or sexual assault, or to have placed another person in reasonable apprehension of imminent serious bodily injury to that person or another, or to have engaged in behavior that could be enjoined under Family Code § 6320 (such as threatening, striking, harassing, destroying personal property, or disturbing the peace of the other party).

3044(d). **Evidence and findings:**

(1) The requirement of “a finding by the court” under this section may be satisfied by, among other things, evidence that a party seeking custody has been convicted within the previous five years – after a trial or plea of guilty/no contest – of a crime against the other party that falls within the definition of domestic violence (Family Code § 6211) and abuse (Family Code § 6203). This includes, but is not limited to, convictions under Penal Code § 243(e) (domestic battery), § 261 (rape), § 273.5 (corporal injury to partner), § 422 (criminal threats), § 646.9 (stalking), or former Penal Code § 262 (spousal rape).

(2) A finding by the court for purposes of this section can also be satisfied if any court (even one not handling the custody case) has made a finding of domestic violence under subdivision (a) of this section, based on behavior that occurred within the past five years.

3044(e). When a court finds 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 Family Court Services staff. The judge must consider any relevant, admissible evidence from the parties themselves. *In other words, the court must make an independent determination based on evidence, not just rely on a mediator or evaluator’s opinion.*

3044(f). **(Provision added to reinforce court’s duty to make findings):**

(1) The Legislature intends that this subdivision be interpreted consistently with the appellate decision in *Jaime G. v. H.L.* (2018) 25 Cal.App.5th 794. That decision requires a court, when determining that the presumption in subdivision (a) has been overcome, to make specific findings on each of the factors in subdivision (b).

(2) If the court finds that the presumption in subdivision (a) has been overcome, the court **shall state its reasons in writing or on the record** as to **why** the requirement in paragraph (1) of subdivision (b) (best interest of the child) is satisfied, and **why** the factors in paragraph (2) of subdivision (b), on balance, support the legislative policy in Section 3020 (prioritizing child and victim safety).

3044(g). In any evidentiary hearing or trial where custody orders are sought and there is an allegation of domestic violence, the court must determine whether § 3044 applies **before** issuing a custody order. (If the court needs more time to decide if § 3044 applies, it may issue a temporary custody order for a reasonable duration, but that temporary order must still comply with the safety considerations of Sections 3011 and 3020.)

3044(h). In any custody or restraining order proceeding where one party alleges that the other party has perpetrated domestic violence under this section, the court shall **inform the parties of the existence of this section** and shall give them a copy of the text of this section **before** any custody mediation in the case. *This ensures both parties know about the 3044 presumption and its implications during the mediation process.*

3044(i). (Sunset clause) This section shall remain in effect **only until January 1, 2026**, and as of that date it is repealed, unless a later statute extends or deletes that date. (As of the publication of this page, § 3044 is operative and in force; future legislation may replace or extend this provision.)

*Nothing on this page should be considered legal advice. This is simply a summary of information found on the Internet. Use at your own risk. This information has not been evaluated by an attorney, and it may be incorrect or obsolete due to changes in the law.