CALIFORNIA FAMILY CODE
PRESUMPTION AGAINST JOINT CUSTODY FOR
PERPETRATORS OF DOMESTIC VIOLENCE
Family Code Section 3044
(a) Upon a finding by the court that a party seeking custody of a child
has perpetrated domestic violence against the other party seeking custody
of the child or against the child or the child's siblings within the
previous five years, 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
Section 3011. This presumption may only be rebutted by a preponderance of the evidence.
(b) In determining whether the presumption set forth in subdivision (a)
has been overcome, the court shall consider all of the following factors:
(1) Whether 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. 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) Whether 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.
(3) Whether the perpetrator has successfully completed a program of alcohol
or drug abuse counseling if the court determines that counseling is appropriate.
(4) Whether the perpetrator has successfully completed a parenting class
if the court determines the class to be appropriate.
(5) Whether the perpetrator is on probation or parole, and whether he or
she has complied with the terms and conditions of probation or parole.
(6) Whether the perpetrator is restrained by a protective order or restraining
order, and whether he or she has complied with its terms and conditions.
(7) Whether the perpetrator of domestic violence has committed any further
acts of domestic violence.
(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 a person in reasonable apprehension of imminent serious
bodily injury to that person or to another, or to have engaged in any
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.
(d) (1) For purposes of this section, the requirement of a finding by the
court shall be satisfied by, among other things, and not limited to, evidence
that a party seeking custody has been convicted within the previous five
years, after a trial or a plea of guilty or no contest, of any crime against
the other party that comes within the definition of domestic violence
Section 6211 and of abuse contained in Section 6203, including, but not limited to,
a crime described in subdivision (e) of
Section 243 of, or Section 261, 262,
273.5, 422, or 646.9 of, the Penal Code.
(2) The requirement of a finding by the court shall also be satisfied if
any 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.
(f) In any custody or restraining order proceeding in which a party has
alleged that the other party has perpetrated domestic violence in accordance
with the terms of this section, the court shall inform the parties of
the existence of this section and shall give them a copy of this section
prior to any custody mediation in the case.