The effect of domestic violence in custody proceedings can result in more than just a restraining order against the offending party. The burden of proof for obtaining domestic violence restraining orders in family law court (as opposed to criminal court) is by a “preponderance of the evidence.” This means that a court merely has to find that it is more likely than not that domestic violence has occurred.
How to Overcome the Family Code 3044 Presumption of Detriment for a Domestic Violence Finding
A finding of domestic violence in family court can have lasting ramifications for the alleged perpetrator of domestic violence in many different ways. For a parent involved in a child custody case, a finding of domestic violence can make it very close to impossible to get custody of a child.
Does a DVRO [Restraining Order] Affect Child Custody – CA Family Code Section 3044
Under Family Code 3044, a finding of domestic violence against the other parent or the child or the child’s siblings within the previous five years, carries with it a rebuttable presumption that an award of sole or joint physical or legal custody of a child to the abuser is detrimental to the best interest of the child. This means that a father or mother can lose custody of their child if the family court makes a finding that he or she has committed domestic violence.
This is because when it comes to child custody, the public policy of the State of California is to ensure the health, safety, and welfare of children. According to the legislature, it is detrimental to a child if domestic violence is perpetrated in the child’s home. The legislature’s policy is also that all court orders have to be made in a manner that ensures the safety of the child and the child’s family members. Thus, California custody law requires judges to take domestic abuse into account when determining legal and physical custody.
Family law judges are required to grant reasonable visitation rights to parents unless visitation would not be in the child’s best interests. It is not in a child’s best interests to be exposed to domestic violence, so the court can protect the child by, for example, ordering supervised visitation (meaning a third party must supervise all visits between the child and the abusive parent) or banning overnight visits.
Family Code 3044 reads in relevant part as follows:
(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 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.
Can a Family Law Attorney Rebut the 3044 Presumption?
If the family court finds that a parent has perpetrated domestic violence against the other parent, the child, or the child’s siblings within the last five years, then the judge will apply a “rebuttable presumption” (a legal assumption that can only be overcome by enough evidence) that the perpetrator should not have sole or joint custody of the child.
It is not always possible to overcome the legal presumption that an award of sole or joint physical or legal custody of a child to the abuser is detrimental to the best interest of the child, but a skilled family law attorney may be able to assess the situation, and present evidence to the court to on the issue. The 7 factors the family court considers to see if an abusive parent can overcome the rebuttable presumption are:
- Whether the alleged abuser has demonstrated that giving sole custody or joint custody of a child to him or her is in the best interest of the child.
- Whether the alleged abuser has successfully completed a batterer’s treatment program that meets the criteria outlined in subdivision (c) of Section 1203.097 of the Penal Code. Even if not ordered, a batterer’s intervention program is almost universally required by family court judges when a litigant is attempting to overcome the Family Code 3044 presumption.
- Whether the alleged abuser has successfully completed an alcohol and chemical dependency program if the court determines that counseling is appropriate.
- Whether the alleged abuser has successfully completed parenting classes if the court determines the classes to be appropriate.
- Whether the alleged abuser is on probation or parole, and whether he or she has complied with the terms and conditions of their probation or parole. This is even more important when the criminal conviction relates to domestic violence.
- Whether the alleged abuser is restrained by a protective order or restraining order, and whether he or she has complied with its terms and conditions.
- Whether the alleged abuser has committed any further acts of domestic violence.
The court is required to evaluate all of the above factors in deciding whether to rebut the presumption against the parent who has perpetrated domestic violence.
Family Law Attorneys Skilled in Overcoming the Family Code 3044 Presumption
California’s domestic violence laws are complex, but they play an integral role in custody matters. Whether you are the victim of domestic violence, or you have been falsely accused of it, you need a law firm that understands the impact it will have in your case. Please reach out to a child custody lawyer for a consultation about your case.