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California Family Code Section 3044 — Domestic Violence Presumption Against Custody

Jurisdiction: United States (California) · Citation: California Family Code § 3044 · Authoritative source: leginfo.legislature.ca.gov — § 3044

The statutory rebuttable presumption that a party who has perpetrated domestic violence within the past five years should NOT receive sole or joint physical or legal custody. Critically relevant to parental-alienation cases in both directions: (a) it can be a legitimate protective tool where a genuinely-violent parent's contact must be curtailed, and (b) it is one of the most common alienation-pattern weapons — false or exaggerated DV claims weaponised to trigger the presumption and procure sole custody.

The current version (operative January 1, 2026 under SB 899 / Stats. 2024 Ch. 544) tightens the rebuttal procedure, expressly bars use of the "frequent and continuing contact" preference to rebut the presumption, and codifies the Jaime G. v. H.L. (2018) 25 Cal.App.5th 794 requirement of specific findings on each factor.

Verbatim text (operative 2026-01-01)

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 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 © 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.

© 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.

Why this matters for PA

  • Dual-edged sword. § 3044 is essential for protecting children from genuinely-violent parents — and is one of the most-cited statutory tools in parental-alienation cases, where false or exaggerated DV allegations are used by alienating parents to trigger the presumption and procure sole custody. The DV finding once made is hard to undo.
  • The Jaime G. specific-findings rule (now codified in s.3044(f)(1)) is the targeted parent's principal procedural defence: the court cannot just "find DV" without addressing each factor in s.3044(b)(2). False-allegation patterns can be exposed if the perpetrator-factors do not actually fit.
  • § 3044(e) — court may not base findings solely on child-custody evaluator or FCS recommendation. This is critical in PA cases where the evaluator has been captured by the alienating parent or has applied the Gardner-era diagnostic framework rather than evidence-based assessment.
  • § 3044© "perpetrated domestic violence" definition is broader than physical violence — includes "disturbing the peace of another" — which has been weaponised in alienation cases where ordinary co-parenting friction is recharacterised as DV.
  • The "frequent and continuing contact" preference may not rebut the presumption (s.3044(b)(1)) — when correctly applied this protects DV victims; when misapplied by an alienator who has captured the DV finding, it can effectively end the targeted parent's contact even where no real DV occurred.
  • California Family Code § 3011 cross-reference — applies the "best interest" framework; this is where genuine PA evidence (e.g., child's stated wishes manipulated, contact-interference patterns) competes with DV-presumption analysis.

Cross-jurisdictional comparison

  • Washington RCW 26.09.191 — similar limitation of residential time where DV is established, but no formal presumption.
  • Florida Fla. Stat. § 61.13 — court considers DV as a factor, not a presumption against custody.
  • Federal [Saudi-Arabian-style] — no federal presumption; addressed via state law and ICARA / Hague Convention defences (Article 13(b) "grave risk").
  • United Kingdom — Re H-N [2021] EWCA Civ 448: DV findings are integrated into welfare analysis under CA 1989 s.1, not via a separate presumption.

Sources & authoritative references

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