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 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 any person in subparagraph (C) of
paragraph (1) of subdivision (b) 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
interests 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
(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 interests of the child pursuant to Sections 3011 and
3020. In determining the best interests 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 he or she 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 he or she has or has not complied with its terms and conditions.
(F) 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 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 a crime against
the other party that comes within the definition of domestic violence
contained in 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
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.
(f) (1) It is the intent of the Legislature that this subdivision be interpreted
consistently with the decision in Jaime G. v. H.L. (2018) ____ Cal.App.5th
____, which requires that the court, in determining that the presumption
in subdivision (a) has been overcome, make specific findings on each of
the factors in subdivision (b).
(2) If the court determines that the presumption in subdivision (a) has
been overcome, the court shall state its reasons in writing or on the
record as to why paragraph (1) of subdivision (b) is satisfied and why
the factors in paragraph (2) of subdivision (b), on balance, support the
legislative findings in
(g) In an evidentiary hearing or trial in which custody orders are sought
and where there has been an allegation of domestic violence, the court
shall make a determination as to whether this section applies prior to
issuing a custody order, unless the court finds that a continuance is
necessary to determine whether this section applies, in which case the
court may issue a temporary custody order for a reasonable period of time,
provided the order complies with
Section 3011, including, but not limited to, subdivision (e), and
(h) In a 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.