Family Code 3044 and the Presumption Associated with a Finding of Domestic Violence

When parents of minor children go through a divorce or a separation, courts must address child custody and visitation. Child custody in California has two components. First, courts address physical custody, which refers to the supervision and physical care of the child, meaning where the child lives and which parent provides the day-to-day care. Second, courts address legal custody of the child, which involves making important decisions about the child’s upbringing, such as the child’s education, health care, religious upbringing, if any, and overall well-being of the child. Both legal and physical custody can be shared by the parents, known as joint legal or physical custody, or to just one parent as sole legal or physical custody. When a parent has sole physical custody of a child, the other parent has visitation.  Courts make decisions about child custody and visitation based on what is in the best interest of the child.  This is the legal standard that is applied in the majority of child custody and visitation related issues.

In a case where there is a child custody dispute and there was a previous finding of domestic violence, the court’s assessment in determining what is in the best interest of the child is governed by Family Code section 3044.

Rebuttable Presumption in Child Custody Cases Involving Previous Domestic Violence

Under section 3044 of the Family Code:

“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 . . . 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.”

In other words, courts operate from the rebuttable presumption that assigning joint or sole legal or physical custody of a child to a parent who has been convicted of or who has been found to have committed domestic violence by a court in the previous five years is not in the best interest of the child.  It is not a conclusive presumption, but a rebuttable one, meaning the parent who has been convicted or found to have committed domestic violence has an opportunity to present evidence to rebut the presumption and potentially obtain an order for joint legal or physical custody or sole legal or physical custody of a child thereafter.

Overcoming the Rebuttable Presumption by a Preponderance of the Evidence

For a parent in the above circumstances, that parent can rebut the presumption by a preponderance of the evidence and can overcome the presumption by showing that 1) assigning sole or joint physical custody to the parent with the history of domestic violence is in fact in the best interest of the child based on other factors, and 2) additional statutory factors weigh in favor of the above parent being assigned sole or joint custody.

Those additional factors under section 3044 to be weighed by the court include the following:

• Perpetrator parent successfully completed a batterer’s treatment program;
• Perpetrator parent successfully completed a program of alcohol or drug abuse counseling, if appropriate;
• Perpetrator parent successfully completed a parenting class, if appropriate;
• Perpetrator parent is on probation or parole and has or has not complied with those conditions;
• Perpetrator parent is restrained by a protective order and has or has not complied with the terms;
• Perpetrator parent has (or has not) committed additional acts of domestic violence; and
• Perpetrator parent is a restrained person in violation of California law by being in possession of a firearm.

Contact a San Jose Family Law Attorney for Assistance with Your Child Custody Case

Child custody cases in which there has been a previous finding of domestic violence can be complex, and it is important to discuss your questions and concerns with a family lawyer who can help. The San Jose family law attorneys at Foster Hsu, LLP can speak with you today about any child custody questions or concerns you have, including cases connected to divorces as well as those that are not. Contact our firm to learn more about how we can assist you.

Source:

codes.findlaw.com/ca/family-code/fam-sect-3044/