Not automatically, but it can affect custody in two ways. A domestic violence restraining order case can itself include custody and visitation orders. And if a court finds that you perpetrated domestic violence within the previous five years against the other party seeking custody, your child, the child’s siblings, or certain other people close to you, Family Code section 3044 creates a rebuttable presumption that giving you sole or joint physical or legal custody is detrimental to the child’s best interest.
Custody orders inside a restraining order case
A court handling a domestic violence restraining order request can issue an ex parte order for temporary custody and visitation of a child, in favor of a party who has established a parent and child relationship (Family Code section 6323(a)(1)), and it can make the same kinds of orders after notice and a hearing (Family Code section 6340(a)(1)). When it makes a custody or visitation order under section 6323, it must consider whether the child’s best interest requires that custody or visitation happen only with a third person present, or be suspended or denied (section 6323(d)). A custody, visitation, or support order made in that case “shall survive the termination of any protective order” (section 6340(a)(1)).
What triggers the section 3044 presumption
The presumption applies “upon a finding by the court” that a party seeking custody “has perpetrated domestic violence within the previous five years” against the other party seeking custody, the child, the child’s siblings, or a person described in Family Code section 3011(a)(2)(A) with whom the party has a relationship. That cross-reference covers, among others, the party’s own parent, current spouse, cohabitant, or dating or engagement partner. The presumption is that awarding that party sole or joint physical or legal custody is detrimental to the child’s best interest, and it “may only be rebutted by a preponderance of the evidence” (Family Code section 3044(a)).
“Perpetrated domestic violence” has a specific meaning here. The court must find that the person intentionally or recklessly caused or attempted to cause bodily injury or sexual assault, placed a person in reasonable apprehension of imminent serious bodily injury, or engaged in behavior such as threatening, striking, harassing, destroying personal property, or disturbing the peace of another, of a kind for which a court may issue an ex parte restraining order under Family Code section 6320 to protect the other party seeking custody or the child and the child’s siblings (section 3044(c)). That is the link to restraining orders: it is the same category of conduct.
Where the finding can come from
The finding does not have to be made in the custody case. It is satisfied, among other ways, by a conviction within the previous five years, after a trial or a guilty or no contest plea, of a crime against the other party that meets the Family Code’s definitions of domestic violence and abuse, such as domestic battery (Penal Code section 243(e)), corporal injury (273.5), criminal threats (422), or stalking (646.9) (section 3044(d)(1)). It is also satisfied if any court, whether or not it hears the custody case, has made a finding under subdivision (a) based on conduct within the previous five years (section 3044(d)(2)). So a family court that grants a restraining order after a hearing, on a finding of that kind, can supply the finding for a separate or later custody case, without any criminal conviction.
A request for a restraining order is an allegation, not a finding. When custody orders are sought at an evidentiary hearing or trial where domestic violence has been alleged, the court must decide whether section 3044 applies before issuing a custody order, though it may make a temporary custody order for a reasonable time if it needs a continuance to decide (section 3044(g)). In making any finding that a party perpetrated domestic violence, the court may not rely solely on a child custody evaluator’s conclusions or a Family Court Services recommendation; it must consider the relevant, admissible evidence the parties submit (section 3044(e)). And when domestic violence is alleged in a custody or restraining order case, the court must tell the parties about section 3044 and give them a copy before custody mediation (section 3044(h)). If you are not sure whether a finding was made, have your lawyer check the orders and the record.
How the presumption can be overcome
The presumption is rebuttable. To overcome it, the court must find that you have shown that giving you sole or joint custody is in the child’s best interest, and the preference for frequent and continuing contact with both parents, or with the noncustodial parent, may not be used to rebut the presumption, in whole or in part (section 3044(b)(1)). The court must also find that these factors, on balance, support the Legislature’s findings in Family Code section 3020 (section 3044(b)(2)):
- completion of a batterer’s treatment program that meets Penal Code section 1203.097(c);
- completion of alcohol or drug abuse counseling, or a parenting class, if the court finds it appropriate;
- probation or parole, and whether you complied with it;
- any protective or restraining order against you, and whether you complied with it;
- any further acts of domestic violence; and
- a determination under Family Code section 6322.5 that you, as a restrained person, possessed or controlled a firearm or ammunition in violation of the firearm restrictions that apply to you.
If the court finds the presumption overcome, it must state its reasons in writing or on the record (section 3044(f)(2)). The statute also says subdivision (f) is to be interpreted consistently with a 2018 Court of Appeal decision, Jaime G. v. H.L., which it describes as requiring specific findings on each factor before a court concludes the presumption has been overcome (section 3044(f)(1)).
If you are facing a restraining order or a domestic violence allegation and custody is part of the picture, ask the Law Offices of David S. Chesley whether a section 3044 finding applies to you and what the record would need to show. See also the pages on false accusations and permanent restraining orders. Call (800) 755-5174 to discuss your situation.