Family Code Section 3044 Presumption in Child Custody Determination

April 4, 2023

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In California, Family Code Section 3044 creates a presumption that it is not in the best interests of the child for a parent who has committed domestic violence to have sole or joint legal or physical custody of the child. This means that if a parent has been found to have committed domestic violence against the other parent or against the child, the court will start with the assumption that the parent who committed the violence should not have custody of the child.

The presumption can be rebutted, which means that it can be overcome. However, the burden of proof is on the parent who committed the violence to prove that it is in the best interests of the child for them to have custody.

There are a number of factors that the court will consider in determining whether to rebut the presumption, including: The severity of the domestic violence; The frequency of the domestic violence; The impact of the domestic violence on the child; The parent's willingness to address any issues, such as anger management or substance abuse issues; The parent's ability to provide a safe and nurturing environment for the child. Taking parenting classes, anger-management classes, co-parenting classes (albeit separately from other parent) and high-conflict parenting classes may be necessary to assist in obtaining necessary education and skills to rebut the Family Code Section 3044 presumption.  

Also, in cases of mental illness, obtaining necessary services, such as counseling, therapy, or even proper psychiatric care may assist in getting proper care to regain custody over time.

The various ways the Family Code Section 3044 presumption can be rebutted are as follows:  

(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.

In cases involving physical violence, a batterer’s intervention class may be necessary. It takes a minimum of one year to complete such a course. It is therefore critical to understand that even if findings are not favorable in the first instance, ongoing dedication to rebuttal of the Family Code Section 3044 factors may assist you in regrading custody or increasing visitation over time.

The Court may make a determination that 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.  However, in making an analysis of best interest of a minor child, a court cannot consider “frequent and continuing contact,” as a preference, unless the family code section 3044 presumption has been rebutted first. 

The importance of Family Code Section 3044 in domestic violence cases cannot be overstated. The presumption protects children from being placed in the care of parents who have a history of violence. It also sends a strong message to perpetrators of domestic violence that their actions will not be tolerated and that they will not be allowed to have custody of their children.  However, in cases where you may be falsely accused of domestic violence.  There is no greater consideration to consider hiring a qualified Family Law attorney to defend in a domestic violence restraining order because of the adverse effects of the Family Code Section 3044 presumption.  

If you are a parent who has been accused of domestic violence, it is important to speak with an attorney as soon as possible. An attorney can help you understand your rights and options and can help you develop a plan to rebut the presumption and protect your child's best interests.   If you are a parent who has been accused of domestic violence, it is important to seek legal counsel immediately. An attorney can help you understand your rights and options and can help you develop a plan to protect your child's best interests.  Call Ashley Andrews APC today.  Your child’s safety and your child custody and visitation rights are our paramount concern.  We look forward to assisting you with all of your legal needs.

This material is provided for educational purposes only. Providing this information does not establish an attorney/client relationship. None of the information contained in this newsletter should be acted upon without first consulting with an attorney. Should you have questions about the content of this newsletter, please arrange to discuss via a consultation.

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This material is provided for educational purposes only. Providing this information does not establish an attorney/client relationship. None of the information contained in this newsletter should be acted upon without first consulting with an attorney. Should you have questions about the content of this newsletter, please arrange to discuss via a consultation.