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California Family Code Section 3044

Legal Research Home > California Laws > Family Code > California Family Code Section 3044

3044.  (a) Upon a finding by the court that a party seeking custody
of a child has perpetrated domestic violence against the other party
seeking custody of the child or against the child or the child's
siblings within the previous five years, 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 Section
3011. This presumption may only be rebutted by a preponderance of the
evidence.
   (b) In determining whether the presumption set forth in
subdivision (a) has been overcome, the court shall consider all of
the following factors:
   (1) Whether 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. 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) Whether 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.
   (3) Whether the perpetrator has successfully completed a program
of alcohol or drug abuse counseling if the court determines that
counseling is appropriate.
   (4) Whether the perpetrator has successfully completed a parenting
class if the court determines the class to be appropriate.
   (5) Whether the perpetrator is on probation or parole, and whether
he or she has complied with the terms and conditions of probation or
parole.
   (6) Whether the perpetrator is restrained by a protective order or
restraining order, and whether he or she has complied with its terms
and conditions.
   (7) Whether 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 any 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 any 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 any 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) In any 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.
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Last modified: March 17, 2014