Considering domestic violence when determining child custody
In a child custody case, if a parent has been convicted of a domestic violence crime or “found” to have committed domestic violence by a judge in the past five years, a special law known as 3044 applies. Here’s what you need to know about California Family Code Section 3044.
In California, a parent convicted of a domestic violence crime or “found” by a judge to have committed domestic violence in the past five years will face the presumption that having custody of the child will be detrimental to that child. This presumption can be overcome only by a preponderance of evidence that convinces the judge that this parent’s custody of the child is in that child’s best interest.
What is child custody?
“Child custody” in California refers to parents’ rights and responsibilities in taking care of their children following a divorce or separation. There are two types of child custody in California: legal and physical.
Legal custody refers to the ability to make important decisions for the child, such as health care, education, and more.
Physical custody refers to who the child lives with. Both types of custody can be either joint or sole, which means that they can be shared by the parents or held by only one parent. Both types are determined by a judge after numerous aspects are considered. However, if both parents agree to a custody arrangement, the judge will simply approve it.
How does domestic violence affect the determination of child custody in California?
California Family Code 3044 lays out how domestic violence may affect the determination of child custody in California. This law applies if one of the parents has been:
- convicted of a domestic violence crime, or
- is “found” by a judge to have committed a domestic violence crime (such as in the case of a Domestic Violence Restraining Order) in the past five years against the other parent, the child or sibling of the child, a romantic partner/roommate, or their parent
California Family Code 3044 states that there will be a presumption that this parent’s custody over the child – either joint or sole – will be detrimental to the child. As such, the other parent will generally be granted sole custody of the child. This presumption can be overcome if there is an overwhelming amount of evidence suggesting that custody by the partner who has committed domestic violence would be in the child’s best interest. To determine the child’s best interest in any custody case, the judge will consider the age and health of the child, emotional ties between the parents and the child, parents’ ability to care for the child, history of substance abuse, and the child’s emotional ties to the areas that the parents live in.
However, when considering the presumption laid out in Section 3044, the judge must further consider whether or not the person has:
- committed any other domestic violence
- violated any aspects of a restraining order
- completed a one-year batterer intervention program
- completed a substance addiction program, if required by a court
- completed a parenting class, if required by a court
- followed the terms of probation or parole (if on probation or parole)
In child custody cases that do not involve domestic violence within the past five years, the judge will consider continued contact with both parents to be an aspect of the child’s best interest; however, this cannot be legally considered by the judge if California Family Code Section 3044 applies.
Related: How Domestic Violence Affects Child Custody in California
FAQs about California Family Code Section 3044: Domestic Violence and Child Custody
My partner and I are separating, and they have been convicted of a domestic violence crime in the past five years. Is it possible that they will be granted custody of our child?
Yes, but it is unlikely. California Family Code Section 3044 sets a relatively high bar by requiring a “preponderance of evidence” to rebut the presumption that the abusive partner’s custody would be detrimental to the child, but it is still legally possible.
My partner and I are separating, and they have been convicted of a domestic violence crime greater than five years ago. Does Section 3044 apply?
No, it does not. This law only applies if they were convicted of or “found” by a judge to have committed a domestic violence crime within the past five years. This does not mean that the abuse will not be considered by the judge; it just means that there will not be a presumption that the abusive parent’s custody of the child will be detrimental to the child.
What if child custody is being determined, and my partner has committed domestic violence within the past five years but has not been convicted of a crime or been “found” by a judge to have committed domestic violence?
In this scenario, during the evidentiary hearing, you can allege that your partner has committed domestic violence. The judge will then consider whether or not Section 3044 applies. It is highly recommended that you consult a lawyer as well.
Contact Us
If you or a loved one have any more questions about Section 3044 and/or domestic violence’s role in the determination of child custody, contact us. Get a free consultation with one of our experienced Domestic VIolence attorneys today!