Family Code 3044: Rebutting the Domestic Violence Custody Presumption

California Family Code Section 3044 creates a rebuttable presumption that awarding custody to a parent who has committed domestic violence within the last five years is against the child’s best interest. The presumption covers both legal custody (who makes major decisions) and physical custody (where the child lives), and once it attaches, the parent found to have committed the abuse carries the burden of proving, by a preponderance of the evidence, that custody still serves the child.¹

A rebuttable presumption is a legal starting point the judge must accept unless the other side produces enough evidence to overcome it. Under Section 3044, the judge cannot treat the abuse finding as just one factor among many. It changes who has to prove what.¹

What Triggers the Presumption

Section 3044 applies only after a court makes a finding that a parent perpetrated domestic violence. That finding can come from a domestic violence restraining order issued after a hearing, a conviction or guilty plea for a domestic violence crime, or a family court judge’s determination based on evidence presented during the custody case itself.²

A temporary restraining order on its own does not trigger the presumption. Those orders are issued without the other side present, and the statute requires a finding made after both parties have had the chance to be heard.

Who the Victim Can Be

The presumption reaches further than violence against the co-parent. It applies when a parent has committed domestic violence against:

The other parent seeking custody
The child, or the child’s siblings
A current spouse, cohabitant, or dating partner of the abusive parent, as described in Family Code Section 3011

Abuse directed at a new partner or a stepchild can trigger the custody presumption, not only violence against the person asking for custody.¹

What Counts as Domestic Violence

Section 3044 reads “perpetrated domestic violence” broadly. It covers intentionally or recklessly causing or attempting to cause bodily injury, sexual assault, placing someone in fear of serious bodily harm, and controlling behaviors such as threatening, harassing, or destroying personal property. Since 2023, the definition also reaches coercive control, meaning a pattern of behavior that unreasonably interferes with another person’s free will or personal liberty.¹

The Five-Year Lookback

The presumption applies when the abuse occurred within five years of the current custody proceeding. If the most recent act happened three years ago, the presumption applies at full force. If it happened six years ago, the presumption no longer attaches automatically, though the court may still weigh the abuse history under the general best-interest factors in Section 3011.¹

Any new act of domestic violence restarts the five-year clock. The window is meant to give the abusive parent time to demonstrate sustained change before seeking custody on equal footing.

How to Rebut the Presumption

Overcoming Section 3044 is a two-part showing. First, the parent who committed the abuse must prove that awarding them custody is in the child’s best interest under Family Code Sections 3011 and 3020. Second, the court weighs seven additional factors on balance and decides whether, taken together, those factors support the child’s safety and welfare.¹

One rule often misunderstood: the court cannot rely on California’s general policy favoring frequent and continuing contact with both parents to overcome the presumption. That preference, which carries weight in ordinary custody cases, is off the table once Section 3044 applies.¹

The Seven Factors

These are not a checklist where finishing every item earns custody back. The judge weighs them together, looking at whether real behavioral change has occurred. The factors are:

Whether the parent completed a batterer’s treatment program meeting the criteria in Penal Code Section 1203.097(c)
Whether the parent completed alcohol or drug abuse counseling, if the court determined it was needed
Whether the parent completed a parenting class, if ordered
Whether the parent is on probation or parole, and whether they have complied with all terms
Whether the parent is subject to a protective order and whether they have obeyed its conditions
Whether the parent has committed any further acts of domestic violence
Whether the parent has been found in possession of firearms or ammunition in violation of Family Code Section 6389, Code of Civil Procedure Section 527.9, or Penal Code Section 18120

The firearm factor was expanded by SB 899, effective January 1, 2026, to reference the two additional firearm statutes beyond the original Family Code 6389 citation.¹

Completing every program on the list does not guarantee custody. A judge who still finds the child’s safety at risk retains full authority to deny custody even when the paperwork looks complete. Courts generally want to see certificates of completion, treatment provider reports, and testimony pointing to genuine change rather than box-checking.²

What Happens If the Presumption Isn’t Rebutted

When Section 3044 applies and the abusive parent does not overcome it, the court awards sole legal and physical custody to the other parent. Joint custody of any kind is unavailable. The non-abusive parent gets authority over where the child lives and over major decisions about schooling, healthcare, and welfare.¹

Losing custody does not automatically mean losing contact. Courts commonly allow visitation with restrictions, often supervised visitation, where a professional monitor or neutral third party is present throughout the visit. The parent being supervised typically pays for the service. Rates vary by location and provider; in San Francisco, hourly rates range from roughly $24 to $175, while more rural counties tend to start lower, around $35 to $60 per hour.²

The restriction does not expire automatically with the five-year lookback. If the presumption was triggered and never rebutted, the custody order stays as the court set it until the court specifically changes it.

Firearm Consequences Tied to the Statute

Anyone subject to a domestic violence restraining order in California cannot possess firearms or ammunition while the order is in effect. The prohibition covers protective orders issued under Family Code Section 6218, juvenile restraining orders, and emergency protective orders. Violating it is a criminal offense under Penal Code Section 29825.³

As of 2026, a court evaluating whether Section 3044 has been rebutted specifically asks whether the parent was found with firearms in violation of Family Code 6389, Code of Civil Procedure 527.9, or Penal Code 18120. A gun violation while under a restraining order creates a new criminal problem and directly damages the parent’s chance of regaining custody.¹

Federal law adds another layer. Under 18 U.S.C. Section 922(g)(9), a misdemeanor domestic violence conviction permanently prohibits firearm possession anywhere in the United States, a federal felony carrying up to 10 years in prison, and the federal ban applies regardless of any state-level restoration of gun rights.⁴

How Section 3044 Fits with the Broader Best-Interest Rules

California courts decide custody under Family Code Section 3011, which lists the factors a judge weighs for the child’s best interest. The first factor is the child’s health, safety, and welfare. The second is a history of abuse by a parent against the child, the other parent, or people in the abusive parent’s household or dating relationships.⁵

When a Section 3044 finding exists, the abuse factor dominates. Safety takes priority over the usual preference for contact with both parents. And even after the five-year presumption period passes, the abuse history remains relevant under Section 3011; the parent simply no longer faces the automatic presumption. A judge may still find that the earlier conduct, combined with other factors like untreated substance abuse, cuts against custody.⁵

1
California Legislative Information. California Family Code 3044
2
California Courts. Domestic Violence and Child Custody
3
California Department of Justice. Firearms Prohibiting Categories
4
Office of the Law Revision Counsel. 18 USC 922
5
California Legislative Information. California Family Code 3011