Revised January 7, 2019
Family Code 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 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
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 criter
ia
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) 25 Cal.App.5th 794, 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 Section 3020.
(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 Section 3020.
(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.