Domestic Violence and Child Custody

If there has been domestic violence in your family, here is important information about a law that may affect you.

What is “domestic violence”?

It means to hit, kick, scare, throw things, pull hair, push, follow, harass, sexually assault, or threaten to do any of these things. It also includes other actions that make someone afraid of being hurt. Domestic violence can be spoken, written, or physical.

What is “child custody”?

There are two types:

  •   Physical custody: The person that the child lives with on a regular basis.
  •   Legal custody: The right for a person to make important decisions about the child’s health care, education, and welfare.When does domestic violence affect whogets custody of my child?In the last 5 years, has a parent in this case committed domestic violence that resulted in a:

    (1) conviction in criminal court for domestic violence against one of the following people:

    •   the other parent in the custody case,
    •   any of your children or your children’s siblings,
    •   current spouse, someone they are currently dating, engaged to or currently lives with or
    •   their parent?
  • OR(2) “finding” of domestic violence by a judge against any of the people listed above (example: a judge granted a restraining order for 1 or more years)?

    If you answered “yes” to (1) or (2), a special law applies to your case. Judges, attorneys, and court professionals refer to this special law as “3044”—the exact law that applies to your case (see page 2). Even if this law does not apply to your case, you should give the judge any information about domestic violence or abuse that you want the judge to consider when making a decision about child custody.

If someone that is not your child’s parent is asking the court for custody, this law applies to them as well.

What happens when the special law (3044) applies to my case?
Under the special law, the judge can only give custody to the person who has a domestic violence conviction/finding if the judge believes that it is in the child’s best interest to do so. The judge must look at 7 factors, including the child’s best interest, in making this decision. The 7 factors that the judge must look at are:

1. What is in the child’s best interest?

2. Has the person committed any other domestic violence?

3. Has the person followed all the terms and conditions of any restraining order?

4. Has the person finished a 1 year batterer intervention program?

5. Has the person finished an alcohol/drug program, if required by the court?

6. Has the person finished a parenting class, if required by the court?

7. If on probation or parole, has the person followed all terms of probation or parole?

The judge must go through this 7-factor test in every case that it applies to, even if a court professional or evaluator makes a recommendation in your case.

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 criteria 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.

from California Courts

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