Domestic Violence Impact on Custody FAQ

California Family Code Section 3044 creates a rebuttable presumption that it is detrimental to the best interest of the child to award custody (sole or joint, legal or physical) to a person who has perpetrated domestic violence within the previous five years. This means if a parent has committed domestic violence within the past 5 years, the court presumes that giving that parent custody would harm the child, and the burden shifts to that parent to prove otherwise.

Domestic violence under Family Code Section 3044 includes abuse committed against the other parent, the child, or any other person seeking custody if witnessed by the child, or against anyone if the child was present during the violence. The presumption applies whether or not there was a criminal conviction - a finding in family court by preponderance of evidence (more likely than not) is sufficient.

This presumption significantly impacts custody determinations because the abusive parent must overcome the presumption with clear and convincing evidence that awarding custody is in the child's best interest despite the violence. This is a much higher burden than the normal preponderance standard, and many parents cannot meet it. The presumption recognizes that domestic violence harms children even when they are not directly abused, as witnessing violence causes psychological trauma and models unhealthy relationships.

To rebut the Family Code Section 3044 presumption, the parent who committed domestic violence must prove that awarding custody to them is in the child's best interest. Under Family Code Section 3044(a), the court must consider whether the perpetrator has successfully completed a batterer's treatment program that meets criteria in Penal Code Section 1203.097 (minimum 52 weeks), has successfully completed a program of alcohol or drug abuse counseling if the court determines substance abuse was a factor in the violence, has successfully completed a parenting class if the court orders it, and is on probation or parole and has complied with all terms and conditions.

The parent must also demonstrate that the best interest of the child under Family Code Section 3011 requires that parent have sole or joint custody, and that sole or joint custody is consistent with Family Code Section 3020's legislative policy prioritizing the health, safety, and welfare of children and the importance of contact with both parents when it does not compromise safety. The court will examine evidence of genuine rehabilitation including therapy participation, changed behavior patterns, stable housing and employment, and testimonials from therapists or program providers.

The parent must present substantial evidence showing they no longer pose a risk, have addressed underlying issues like substance abuse or anger problems, can provide a safe and stable environment, and that having custody (not just visitation) would actually benefit the child. This is a high burden requiring substantial evidence of rehabilitation and changed circumstances. Courts are appropriately skeptical and protective of children's safety in these situations.

No, domestic violence does not automatically eliminate all custody and visitation rights, but it significantly restricts them. Under Family Code Section 3044, the presumption is against custody (legal or physical), not necessarily against all visitation. Courts must distinguish between legal custody (decision-making authority about education, health care, and welfare), physical custody (where the child primarily resides), and visitation (parenting time without custodial rights).

Even when the Family Code 3044 presumption applies and prevents custody, the court may still order supervised visitation under Family Code Section 3100. The non-offending parent does not need to prove that visitation should be supervised - once domestic violence is established, the burden shifts to the offending parent to show why visitation should not be supervised. California law recognizes that children generally benefit from relationships with both parents, but safety is paramount.

Supervised visitation means visits occur only in the presence of a third party approved by the court, either a professional supervisor at a supervised visitation center or a mutually agreed-upon family member or friend approved by the court. The supervisor's role is to ensure the child's safety and monitor for appropriate behavior. The court may gradually transition from supervised to unsupervised visitation as the offending parent demonstrates rehabilitation, completion of required programs, and poses no risk to the child. In extreme cases involving severe abuse or ongoing danger, courts can deny all contact.

Family Code Section 3044 applies when domestic violence has been perpetrated within the previous 5 years from the date of the custody hearing. Domestic violence is defined in Family Code Section 6203 and includes intentionally or recklessly causing or attempting to cause bodily injury, sexual assault, placing a person in reasonable apprehension of imminent serious bodily injury to that person or another, engaging in behavior that could be enjoined under Section 6320 (molesting, attacking, striking, stalking, threatening, harassing, destroying property, contacting another, or disturbing the peace of the other party), and abuse against the child including witnessing domestic violence between parents.

The violence must have been committed against a person in a domestic relationship including current or former spouse, cohabitant, person with whom the perpetrator has had a child, person with whom the perpetrator has had a dating or engagement relationship, or certain family members. The domestic violence can be proven by a criminal conviction under Penal Code Section 273.5 (corporal injury to spouse), PC 243(e)(1) (domestic battery), or related statutes; a restraining order finding after noticed hearing under Family Code Section 6300; or by testimony and evidence in the custody proceeding itself without any criminal conviction or prior restraining order.

The court applies a preponderance of evidence standard (more likely than not) to determine whether domestic violence occurred for purposes of Family Code Section 3044. This is a lower standard than the criminal beyond a reasonable doubt standard, so domestic violence can be found even without criminal charges. The court considers police reports, medical records, photographs, witness testimony, and credible declarations from the parties.

A batterer intervention program is a specialized domestic violence treatment program that focuses on accountability, stopping violent behavior, and changing attitudes about relationships and control. Under California Penal Code Section 1203.097, these programs must be at least 52 weeks long with one session per week of at least two hours (minimum 104 hours total). The curriculum must address cultural and ethnic sensitivity relevant to the participants, address the effects of domestic violence on children, consider the health and safety of victims and their children as priority, and be specifically designed for batterers (general anger management programs do not satisfy this requirement).

The programs use psychoeducational methods to help participants recognize patterns of abusive and controlling behavior, understand power and control dynamics in relationships, take responsibility for their violence without blaming victims, develop empathy for victims, and develop non-violent conflict resolution skills. Topics include the cycle of violence, effects on children, accountability, respect, effective communication, and healthy relationships.

Courts frequently order batterer intervention programs as a condition of probation in criminal domestic violence cases under Penal Code Section 1203.097. In family law cases, successful completion is one of the key factors courts consider under Family Code Section 3044(a) when determining if the presumption against custody has been rebutted. Programs must be certified by the county probation department, and the provider must report attendance, participation, and progress to the court and probation. Unsuccessful completion, poor participation, or non-compliance can result in probation violation in criminal cases or continued restricted custody rights in family law cases.

Yes, you can request custody modification based on domestic violence that occurred years ago, but timing and circumstances matter significantly. Under Family Code Section 3044, the presumption against custody applies to domestic violence perpetrated within the previous 5 years from the date of the custody hearing. If the domestic violence occurred more than 5 years ago, the Family Code 3044 presumption does not automatically apply. However, past domestic violence beyond 5 years can still be considered as one factor in the best interest analysis under Family Code Section 3011.

To modify custody, you must file a Request for Order (form FL-300) and demonstrate either a significant change of circumstances under Family Code Section 3087 since the last custody order, or that the current custody arrangement is not in the child's best interest. Discovering or newly documenting past domestic violence can constitute changed circumstances even if the violence occurred years ago, especially if you were previously prevented from disclosing it due to fear or coercion.

You should gather evidence including police reports from the time period, medical records documenting injuries, photographs if available, restraining order filings or court documents, witness declarations from people who knew about the abuse at the time, your detailed declaration explaining why you did not raise this earlier, and any documentation of ongoing patterns or recent incidents. Even if beyond the 5-year window for the presumption, evidence of past domestic violence remains relevant to show patterns of behavior, character, risk assessment for future harm, and the child's best interest. Courts have discretion to consider all relevant evidence of abuse when making custody determinations.

Under Family Code Section 3100, courts order supervised visitation when necessary to protect the child's best interest and safety. When domestic violence has been established under Family Code Section 3044, there is a strong presumption favoring supervised visitation. The court considers multiple factors including the age and developmental needs of the child (younger children may be more vulnerable), the nature and severity of the domestic violence (whether it was witnessed by the child, whether the child was directly abused, whether there were threats to harm or kidnap the child, frequency and recency of violence), and the offending parent's compliance with treatment programs including batterer intervention under Penal Code 1203.097, substance abuse counseling, and parenting classes.

The court also examines any criminal protective orders or restraining orders currently in effect under Penal Code Section 136.2 or Family Code Section 6200, the offending parent's acknowledgment of responsibility for the abuse versus denial or blame-shifting, demonstrated behavior change and rehabilitation efforts, recommendations from child custody evaluators under Evidence Code Section 730 or therapists treating the child or parents, and the child's expressed wishes if the child is of sufficient age and capacity under Family Code Section 3042 (age 14 and older have right to address court).

The court must balance the child's statutory right under Family Code Section 3020 to maintain a relationship with both parents against the paramount need to protect the child from harm. Supervised visitation can occur at a professional supervised visitation center with trained monitors who submit reports to the court, with a mutually agreed upon third party family member or friend approved by the court after background check, or through a court-appointed supervisor. The court's order will specify frequency, duration, location of visits, who will supervise, whether the supervisor can leave the child alone with the parent at any point, and any other conditions necessary to protect the child such as prohibitions on discussing the other parent or the court case.

To prove domestic violence in a custody case, you need evidence meeting the preponderance of evidence standard (more likely than not). Strong evidence includes criminal convictions under Penal Code Section 273.5 (corporal injury to spouse), PC 243(e)(1) (domestic battery), PC 422 (criminal threats), or related domestic violence statutes - these create a strong presumption that abuse occurred. Domestic violence restraining orders under Family Code Section 6200-6409, especially after a noticed hearing where the court made factual findings, provide compelling evidence of abuse.

Police reports documenting domestic violence calls, officer observations of injuries or emotional state, statements by both parties, and any arrests are highly persuasive. Medical records showing injuries consistent with abuse including emergency room visits, urgent care, primary care doctor's notes, photographs of injuries taken by medical staff with dates and descriptions are critical evidence. Text messages, emails, voicemails, and social media posts containing threats, harassment, admissions of violence, or controlling behavior should be preserved and presented with proper authentication.

Witness declarations under penalty of perjury from people who saw the abuse, heard threats or violent altercations, observed your injuries and emotional state, or witnessed the aftermath of abuse can corroborate your testimony. Your own detailed declaration with specific dates, times, locations, descriptions of incidents, injuries sustained, emotional impact, and how the abuse affected you and the children is essential. Child therapy records may show the psychological impact of witnessing domestic violence if the therapist is willing to testify or provide records (with appropriate releases). Keep a detailed journal documenting abuse incidents as they occur with dates, times, what happened, any injuries, and witnesses. Under Evidence Code Section 1370, certain hearsay statements describing abuse may be admissible if made for medical diagnosis or to law enforcement. You should organize all evidence chronologically and be prepared to testify credibly and specifically about the abuse pattern.

Yes, courts can and should consider domestic violence that occurred during pregnancy when making custody determinations. Under Family Code Section 3044, the statute does not limit consideration only to violence after the child's birth. Violence during pregnancy is particularly relevant because extensive research shows it poses serious risks to both the mother and unborn child including premature birth, low birth weight, and maternal health complications; demonstrates a pattern of abuse and control that likely continued after birth; may indicate substance abuse, anger problems, or other risk factors affecting parenting ability; and shows fundamental disregard for the child's wellbeing even before birth.

Additionally, Family Code Section 3011(f) requires courts to consider the perpetration of child abuse by a party seeking custody against the child or any sibling, which courts have interpreted to include abuse during pregnancy as it directly affects the child's health and development in utero. Courts recognize that harming a pregnant woman is harming the unborn child, and such behavior is highly relevant to custody and parenting fitness.

Evidence of abuse during pregnancy can include medical records documenting injuries during prenatal care visits or pregnancy-related ER visits, police reports from domestic violence incidents while you were pregnant showing you reported the abuse, witness testimony from family, friends, or medical providers who observed abuse or injuries during your pregnancy, photographs of injuries showing you were visibly pregnant at the time, your declaration detailing the abuse during pregnancy and its impact on your health and the pregnancy, and hospital records from delivery that may document injuries, statements about abuse, or social services referrals. Courts recognize that domestic violence during pregnancy is a strong predictor of future abuse and child abuse, and reflects fundamentally on the perpetrator's fitness as a parent. This evidence strongly supports findings under Family Code Section 3044 and demonstrates ongoing risk to both the child and custodial parent.

The timeline for transitioning from supervised to unsupervised visitation varies significantly based on individual circumstances, the severity of domestic violence, the offending parent's progress in treatment, and the child's needs and safety. There is no set timeline in California law - courts have broad discretion under Family Code Section 3100 to determine appropriate visitation based on the child's best interest and safety.

A typical progression might include an initial period of supervised visitation at a professional center lasting 6-12 months or longer if compliance is poor or concerning behaviors are reported, then supervised visitation with an approved family member or friend for another 6-12 months demonstrating appropriate and consistent behavior, followed by brief unsupervised day visits in public places (2-4 hours) gradually increasing in duration over several months, then unsupervised day visits at the parent's home, and eventually overnight visits if appropriate based on the child's age and comfort level. Each transition requires court approval via a Request for Order.

Factors affecting the timeline include successful completion of 52-week batterer intervention program under Penal Code Section 1203.097 (this alone takes one year), completion of substance abuse treatment if substance abuse was a factor, completion of parenting classes and individual therapy if ordered, consistent attendance and appropriate behavior during supervised visits with no concerning incidents reported by supervisors, compliance with all court orders including restraining orders and criminal probation terms, demonstrated stability in housing and employment, the child's comfort level and any expressed preferences if the child is of sufficient age and capacity under Family Code Section 3042, and positive recommendations from therapists, child custody evaluators under Evidence Code Section 730, or supervised visitation providers. Either parent can file a Request for Order (FL-300) to modify the visitation schedule. The court will require evidence of changed circumstances under Family Code Section 3087 and that modification serves the child's best interest. Transitions should be gradual, child-focused, and supported by professional recommendations with regular monitoring and evaluation. Rushing the process can endanger the child and set back progress.