California Family Code §3044: How Domestic Violence Affects Custody

By Maryam Atighechi, Esq.

Key takeaway: If a California court finds that a parent has committed domestic violence within the past five years, Family Code §3044 creates a rebuttable presumption that awarding that parent sole or joint legal or physical custody is not in the child’s best interest. The presumption can be overcome—but only with specific, credible evidence and written findings by the judge.

Why §3044 matters

California’s custody law is guided by two core principles: the child’s health, safety, and welfare, and frequent and continuing contact with both parents—unless that contact would be inconsistent with the child’s safety. Section 3044 operationalizes this safety-first mandate in cases involving domestic violence. It requires courts to start from the position that custody with a recent perpetrator of DV is not in the child’s best interest, and it directs the court to make express findings before it can award that parent custody.

What triggers §3044?

• A finding by a court that a parent has perpetrated domestic violence against the other parent, the child, or the child’s siblings within the last five years. Findings may arise from a DVRO (temporary or permanent), a family, juvenile, or criminal matter, or through stipulated factual findings.
• DV includes not only physical abuse, but also a wide range of conduct under Fam. Code §6320, including harassment, stalking, disturbing the peace (e.g., coercive control), and more.

What §3044 does not do:

• It does not create an automatic ban on visitation. The court must craft orders that protect the child, which may include professionally monitored visits, therapeutic visitation, safe exchanges, or other conditions.
• It does not vanish just because the other parent appears cooperative, the child says they “want more time,” or the parties reach a casual agreement. The statute requires evidence and express findings to overcome the presumption.

How the presumption can be rebutted

To overcome §3044, the court must consider all relevant factors, including the best‑interest factors in §§3011 and 3020, and make specific findings that awarding custody to the perpetrating parent is in the child’s best interest. Statutorily listed considerations commonly include whether the parent has:

1. Completed a 52‑week batterer intervention program where appropriate.
2. Completed alcohol or drug counseling if substance use contributed to the violence.
3. Completed a parenting class if appropriate.
4. Complied with probation or parole, and with all protective orders (criminal, juvenile, or family).
5. Committed no further acts of domestic violence.
6. Relinquished firearms and complied with firearm prohibitions.
7. Demonstrated insight and behavioral change, including safety planning and accountability.

Practice pointer: Courts must make written or on‑the‑record findings that explain how the evidence rebuts the presumption and serves the child’s best interest. If those findings are missing, the order is vulnerable on appeal or writ.

Common myths (and the law)

• Myth: “The DV was between adults, so §3044 doesn’t apply to custody.” Law: §3044 applies if the DV was against the other parent, the child, or the child’s siblings. The focus is safety and the child’s best interest.
• Myth: “Finishing a few classes automatically restores joint custody.” Law: Completion of programs is one factor. The judge still must evaluate all statutory and best‑interest factors and make express findings.
• Myth: “If the child wants it, the court must give joint custody.” Law: Child preference can be relevant under §3042, but it does not override §3044’s safety presumption.
• Myth: “The presumption disappears if there’s no current DVRO.” Law: The trigger is a finding within five years, not whether a protective order is presently in effect.

Building (or defending against) a §3044 record

For the protected parent

• Document everything: Violations, communications, police or CPS contact, missed classes, substance‑related incidents, and firearm issues.
• Therapeutic support: Consider child‑focused therapy, with orders clarifying limits under Evid. Code and privacy statutes. Avoid improper “conjoint” therapy when safety is not established.
• Ask for specific orders: Monitored visitation, neutral exchanges, no‑alcohol before/during visits, breathalyzer compliance, no third‑party contact, and detailed transportation protocols.
• Insist on findings: Request the court to state each §3044 factor considered and its best‑interest analysis on the record.

For the perpetrating/alleged parent seeking to rebut

• Complete appropriate programs early and obtain credible proof of participation and completion.
• Demonstrate insight: Take responsibility; show concrete behavioral change, not mere promises.
• Full compliance: Zero violations of restraining orders; timely firearm relinquishment; negative alcohol/drug tests where relevant.
• Therapeutic engagement: Individual therapy focused on accountability and non‑violent conflict resolution; parenting coaching.
• Child‑centered plan: Propose a graduated time‑share with built‑in safety measures and clinical support.

What judges are looking for

Judicial officers tend to focus on: (1) Recency and severity of the DV; (2) Pattern versus isolated event; (3) Credibility and corroboration; (4) Program compliance and insight; (5) Risk management—substance use, mental‑health stability, and firearm safety; and (6) a workable parenting plan that puts the child’s safety first.

Pull quote: “In §3044 cases, safety is not a competing interest—it is the starting point.”

Sample language you can adapt

Request for §3044 findings (protected parent):

Petitioner requests express findings under Fam. Code §3044 that Respondent perpetrated domestic violence within the last five years and that the presumption against awarding Respondent legal or physical custody has not been rebutted. See Fam. Code §§3011, 3020. Petitioner further requests orders limiting Respondent to professionally monitored visitation with safety conditions, including firearm compliance and alcohol abstinence during parenting time.

Proposed findings when the court finds rebuttal (alleged perpetrator):

The Court finds that Respondent has rebutted the presumption under Fam. Code §3044 by a preponderance of the evidence, after considering the factors in §§3011 and 3020. The Court’s findings include: completion of a 52‑week batterer intervention program; negative random alcohol/drug tests; successful completion of a parenting program; no further acts of domestic violence; full compliance with protective orders; and firearm relinquishment. The Court further finds that the parenting plan ordered herein is in the child’s best interest and includes safety‑based conditions.

Frequently asked questions

Does §3044 apply if there was only a temporary restraining order (TRO)? It can, if the court made factual findings that DV occurred. The key is the finding, not the label on the order.

Can the presumption be overcome without the 52‑week program? Sometimes, depending on the facts. The statute requires consideration of multiple factors; no single item is always dispositive. But lack of program completion often weighs heavily against rebuttal.

What about joint legal custody only? §3044 applies to legal and physical custody. Courts frequently restrict legal‑custody decision‑making when safety, coercive control, or communication abuse is present.

Does the presumption affect child support? Not directly. Support is governed by guideline formulas and Fam. Code §4320 (for spousal support). However, time‑share can indirectly affect guideline child support.

Citations & authority (for further reading)

• Fam. Code §§3020, 3011, 3044, 3042, 6320.
• California case law requiring express §3044 findings and adherence to the statute before awarding custody to a parent who committed DV (collect and cite controlling authorities when publishing to a legal audience).

Editor’s note: If you plan to publish for a practitioner audience, insert pinpoint citations to recent published cases in your district. For a client‑facing blog, the statutory overview above is usually sufficient.

About the author

Maryam Atighechi is a California family‑law attorney based in Los Angeles, representing parents in complex custody, DVRO, and support matters. This post is for general information only and is not legal advice. For counsel about your case, consult an attorney.