Rebutting the California Family Code Section 3044 Presumption

One very important  law in domestic violence cases is the presumption in California Family Code section 3044. This section of the law establishes a presumption against awarding visitation or custody rights to a parent found guilty of domestic violence in certain circumstances. However, it is a “rebuttable” presumption. This means it is not absolute, and there are ways to rebut the presumption against visitation and custody under certain circumstances. Understanding this section of the law and how the presumption can be effectively rebutted is vital for families navigating child custody and visitation disputes in domestic violence cases in California.

Understanding California Family Code Section 3044

Family Code Section 3044 establishes California’s rebuttable presumption that the best interests of a child are not served by awarding custody or unsupervised visitation to a parent who was convicted of committing domestic violence against either the child themselves, or against the child’s other parent.

The statute provides:

• 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.

This rebuttable presumption can apply both to criminal convictions, as well as cases involving domestic violence restraining orders through the family court.

Rebutting the Presumption

To rebut the presumption, the court must find that (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 Section 3011 and 3020. And, the following factors, on balance, support the legislative findings in Section 3020:

• 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.
• The perpetrator has successfully completed a program of alcohol or drug abuse counseling, if the court determines that counseling is appropriate.
• The perpetrator has successfully completed a parenting class, if the court determines the class to be appropriate.
• The perpetrator is on probation or parole, and has or has not complied with the terms and conditions of probation or parole.
• The perpetrator is restrained by a protective order or restraining order, and has or has not complied with its terms and conditions.
• The perpetrator of domestic violence has committed further acts of domestic violence.
• 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.

Evidence of rehabilitation efforts, such as completing an anger management course or continued involvement in a domestic violence counseling program, can signal to the court that the parent no longer poses a threat to the child. The length of time between the protective order or conviction and a demonstrated history of no further incidents can also work in a parent’s favor.

Witness testimony from community members (e.g., neighbors, school) and friends and family can help the parent show a history of good character which may help rebut the 3044 presumption.

A parent may achieve more of what they want if they can brainstorm alternative custody or visitation arrangements. For example, supervised visitation while in the home of a trusted family member. While these kinds of arrangements may feel limiting at first, they give you time with the child and create an opportunity to show that you can and should be trusted to have more time with the child.

Contact Cardwell Steigerwald Young LLP

The 3044 presumption is rebuttable, but accomplishing that task is complex. Successfully navigating this legal hurdle requires a thorough understanding of California’s nuanced family law and evidentiary rules. Consulting with experienced San Francisco child custody and visitation attorneys with Cardwell Steigerwald Young LLP can give you a headstart in assessing the facts of your own case and developing a tailored strategy to help you pursue your goals. Contact our office today to begin working with our team.

Source:

California Family Code section 3044