Domestic Violence and Custody: What You Need to Know

If a parent has been found to have committed domestic violence against any of the following individuals, there is a legal presumption that the perpetrating parent should not have legal or physical custody:

• The child;
• The child’s siblings;
• Any child with whom the parent has a caretaking relationship;
• The other parent; or
• A person the perpetrating parent is living with or dating.

Under California law, when a court issues a custody and visitation order, it must consider what is in the child’s best interest. The determination of a child’s best interest varies from case to case, so there is no universal rule for every situation. However, it is clear that domestic violence is not in the best interest of a child.

The presumption against granting custody to a parent who has committed domestic violence means that it is assumed the offending parent should not have custody, as this would not be in the child’s best interest. Unless the court receives compelling evidence to the contrary, the judge is required to award sole legal and physical custody to the other parent. This presumption applies to any domestic violence committed within the last five years.

That being said, the presumption can be rebutted. To rebut a presumption means to present strong evidence that undermines the assumption underlying the presumption. In this case, to rebut the presumption, the parent must prove that the child’s health, safety, and welfare would be best protected by allowing the offending parent to have custody. The law presumes that domestic violence causes psychological trauma to children, regardless of the specific circumstances. Therefore, there must be a compelling reason for the court to disregard this presumption.

One way to attempt to rebut the Family Code Section 3044 presumption is to participate in programs that demonstrate accountability, growth, and remorse. If a parent remains defensive, denies the violence, or shows no remorse, the court will likely conclude that the underlying issues that led to the domestic violence remain unresolved, and custody will be denied. To have the best chance of regaining custody after a domestic violence finding, the parent should approach the process with humility, show personal growth, and express to the court how this growth has made them a better parent. Additionally, the parent must convincingly explain why granting them custody would be in the best interest of the child.