Rebutting the Presumption of Family Code Section 3044 after a DVRO in California

Domestic violence restraining orders in custody proceedings can result in more than just a restraining order against the offending party. The burden of proof for obtaining a DVRO in family court is by a “preponderance of the evidence.” That means that a court merely has to find that it is more likely than not (51%+) that domestic violence has occurred.

A finding of domestic violence in family court has lasting consequences for the perpetrator of domestic violence. For a parent involved in a child custody case, a finding of domestic violence can make it very difficult to keep or obtain custody of a child.

How Domestic Violence Restraining Orders and Criminal Convictions Affect Child Custody Under California Family Code Section 3044

Under Family Code 3044, a finding of domestic violence against a parent, the child or the child’s siblings within the previous five years, carries a rebuttable presumption that an award of sole or joint physical or legal custody of a child to the abuser is detrimental to the child’s interest. This means that a judge has discretion to award little to no custody to the parent who has had a restraining order issued against them.

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 California law, it is detrimental to a child if domestic violence is perpetrated in the child’s home or by a parent. California lawmakers want to ensure that all court orders be made in a manner that ensures the safety of the child. Thus, California custody law requires judges to take domestic abuse into account when determining legal and physical custody as governed by Family Code Section 3044.

The only requirement of family law judges after a restraining order is issued against a parent is that they 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 ordering supervised visitation, banning overnight visits, etc.

Family Code 3044 reads in relevant part as follows:

(c) For purposes of this section, a person has “perpetrated domestic violence” when the person 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.

A Bay Area Family Law Attorney Can Help to Rebut the Presumption of California Family Code 3044

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 evidence) that the perpetrator should not have custody of the child

An experienced family law attorney in the Bay Area may be able to help overcome this presumption through presentation of evidence to the court the reason that the parent having custody of the child is still in the best interest of the child. There are seven (7) factors the family court considers to see if an abusive parent can overcome the rebuttable presumption. Those seven (7) factors are as follows:

1. Whether the alleged abuser has demonstrated that giving sole 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, family court judges almost universally require a batterer’s intervention program 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, especially 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 to date; and

• Whether the alleged abuser has committed any further acts of domestic violence.

The judge must evaluate all of the factors in order to decide whether to rebut the presumption against the parent who has perpetrated domestic violence and allow custody of a child to the perpetrator.

Domestic violence laws in California are complex, but they are integral in custody and family law matters. Whether you are the victim of domestic violence, or you have been falsely accused of it, you need an experienced family law attorney who understands the impact it will have in your case. Give us a call for a consultation today at 925-362-3364.

Our experienced Bay Area and East Bay family attorneys are here to help. Contact Tierney Law Group, PC for a consultation to speak with an experienced family law lawyer today.

Katlin N. Law

Attorney at Tierney Law Group, PC