FAM § 3044

5-year domestic violence custody presumption: FAM § 3044

FAM § 3044 creates a rebuttable presumption that custody to a domestic violence perpetrator within 5 years is detrimental to the child.

Official text FAM § 3044 — California

(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 a person in subparagraph (A) of paragraph (2) of subdivision (a) 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 interest 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 interest of the child pursuant to Sections 3011 and 3020. In determining the best interest 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 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 has or has not complied with its terms and conditions. (F) The perpetrator of domestic violence has committed further acts of domestic violence. (G) The court has determined, pursuant to Section 6322.5, that the perpetrator is a restrained person in possession or control of a firearm or ammunition in violation of Section 6389, Section 527.9 of the Code of Civil Procedure, or Section 18120 of the Penal Code.

(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, 273.5, 422, or 646.9 of, or former Section 262 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 Sections 3011 and 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 custody mediation in the case.

(i) This section shall become effective on January 1, 2026.

Text as published in the 2026 snapshot of the code.

Source: Vaquill Open US Law, compiled from official state publishers (huggingface.co), reproduced under license CC BY 4.0.

Read this provision at the official source →

What it actually says

Section 3044 is the strongest presumption in California custody law. Subdivision (a) provides that on a finding that a party seeking custody has perpetrated domestic violence within the previous five years against the other party seeking custody, against the child or the child's siblings, or against a person described in § 3011(a)(2)(A) with whom the party has a relationship, there is a rebuttable presumption that awarding sole or joint physical or legal custody to that person is detrimental to the best interest of the child. The presumption may be rebutted only by a preponderance of the evidence.

Subdivision (b) sets out how it is overcome, and it is demanding. The court must find both that the perpetrator has demonstrated that giving them sole or joint custody is in the child's best interest under §§ 3011 and 3020, and that a list of additional factors on balance supports the legislative findings in § 3020. Critically, the preference for frequent and continuing contact with both parents in § 3020(b), and the corresponding language in § 3040(a)(1), may not be used to rebut the presumption in whole or in part — the usual argument for contact is expressly taken away. The additional factors include successful completion of a batterer's treatment program meeting the Penal Code criteria, of alcohol or drug abuse counselling where appropriate, and of a parenting class where appropriate; compliance with probation or parole; and compliance with any protective or restraining order.

What triggers the presumption is a finding by the court of perpetration of domestic violence within five years, which does not require a criminal conviction. This is a technical area where the sequence of findings matters a great deal, and it is one where a family lawyer, and where relevant a domestic violence advocate, should be involved rather than the statute read alone.

When it applies

A restraining order was granted and the restrained parent now seeks joint custody
A finding of domestic violence made in an earlier proceeding
Abuse directed at the other parent rather than at the child
A parent who has completed a batterer's intervention program
The other side arguing the child needs contact with both parents
Abuse that happened several years ago and the five-year window

What this section does not say

It is not a permanent bar. The presumption is rebuttable, and subdivision (b) sets out what must be shown to overcome it.
It does not require a criminal conviction. What triggers it is a finding by the court that the party perpetrated domestic violence within the previous five years.
The contact argument cannot rebut it. Subdivision (b)(1) expressly forbids using the preference for frequent and continuing contact in § 3020(b) or § 3040(a)(1) to rebut the presumption.
It does not decide visitation by itself. Whether and how a restrained parent sees the child is addressed by § 3100, including supervised and limited arrangements.
It is not limited to violence against the child. Violence against the other party seeking custody, against the child's siblings, or against a person described in § 3011(a)(2)(A) also triggers it.

Worked examples

Invented situations, written to show how the wording bites. They are not real cases, not judgments and not precedent, and nothing here predicts what would happen in yours.

Illustrative example

A restraining order was granted last year on a finding of domestic violence. The restrained parent now applies for joint legal and physical custody, arguing that the child needs both parents.

How the wording applies

Where the court finds a party perpetrated domestic violence within the previous five years, section 3044 creates a rebuttable presumption that an award of custody to that person is detrimental to the child. The argument being run is the one the section closes off, because subdivision (b)(1) expressly forbids using the preference for frequent and continuing contact to rebut it. It turns on the finding and its date.

How the parties settled it

The parties agree supervised contact building to unsupervised daytime contact against completed programme milestones, with handovers at a neutral location and a review before any overnight time.

Illustrative example

A parent who has completed a batterer's intervention programme and a parenting course asks for the presumption to be treated as answered.

How the wording applies

The presumption is rebuttable, and subdivision (b) sets out what must be shown, including completion of the programmes the court ordered and compliance with any restraining order or terms of probation. What it turns on is whether the whole of the required showing is made, rather than the programme certificate alone.

How the parties settled it

The parents agree a stepped schedule tied to continued compliance, with an agreed independent professional reporting at fixed intervals and either parent able to ask for a review.

How courts have read it

Decisions construing this provision. The question and the summary are ours; the quoted sentence is the court's own words, taken from the published opinion. These are the decisions in our corpus, not every decision there is, and nothing here predicts any other case. Reported 1991 to 2017.

Ellis v. Lyons, 2 Cal. App. 5th 404 (2016)

Court of Appeal

What the court had to decide

Did the family law court err by failing to apply the rebuttable presumption under Family Code section 3044 and by relying on the preference for frequent and continuing contact with the noncustodial parent?

What it held

The family law court abused its discretion by not applying the rebuttable presumption under section 3044 and by relying on the preference for frequent and continuing contact, which is prohibited under section 3044(b)(1).

In the court's words

But what a court may not do under the statute—and what the family law court did here—is rely ‘“in whole or in part” on section 3040’s preference for frequent and continuing contact with the noncustodial parent. (§ 3044, subd. (b)(1).) We are therefore compelled to reverse the order denying Mother’s request for modification of the custody arrangement and to remand to allow the family law court to determine the issue under the proper legal framework.

Fajota v. Fajota, 230 Cal. App. 4th 1487 (2014)

Court of Appeal

What the court had to decide

Whether the trial court erred in failing to apply the rebuttable presumption under Family Code section 3044 when awarding joint legal custody to a parent who had committed domestic violence.

What it held

The trial court abused its discretion by failing to apply the mandatory presumption set forth in section 3044 when it determined that the parties would share joint legal custody of the children, so the custody order is reversed and remanded for application of the presumption.

In the court's words

We therefore reverse the custody order of the trial court contained in the judgment of dissolution, and remand the matter to the trial court to apply the mandatory presumption in determining the custody of the children.

Source: Caselaw Access Project, CC0 1.0 Universal (public domain dedication).

Related sections

FAM § 3011 California Family Code § 3011 - The factors a court weighs in a custody decision FAM § 3040 Parents First for Child Custody | FAM § 3040 FAM § 3100 Visitation Rights & Restraining Orders: FAM § 3100 FAM § 3087 Modify/terminate joint custody if best interest. FAM §3087

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We copy this text from the official publisher and re-check it against that source on every page load, but we cannot guarantee it is complete, current or free of error, and we accept no liability for any reliance on it. An amendment can take effect before a consolidation catches up. The publisher's own copy is linked below; where the two differ, it is the official one that counts.

This page reproduces the text of FAM § 3044 in force at the date shown and explains it in general terms. It is not legal advice and takes no account of the circumstances of your case, which can change the answer completely. For a live dispute, for limitation periods, and before taking any step in court, consult a qualified lawyer in California.

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