Turning The Tide: Overcoming California Family Code § 3044 In Domestic Violence Custody Cases

Few moments in family court feel as heavy as when the words "Family Code section 3044" are spoken. The statute carries a formidable presumption: that awarding custody to a parent who has committed domestic violence within the past five years is detrimental to the child. It is one of the most powerful provisions in California family law, and for many parents, it can feel like the door has been slammed shut.

But practitioners know that section 3044 is not a permanent lock—it is a test. And with careful preparation, it is a test that can be passed.

Why Section 3044 Packs Such a Punch

The statute reflects a fundamental policy: children deserve to grow up in safe, stable environments. When domestic violence has occurred, courts must begin with the assumption that placing a child with that parent is harmful.

Yet the Legislature also recognized that parents can change. The presumption is rebuttable. This means the restrained parent has both an opportunity, and a burden, to show by a preponderance of the evidence that awarding custody to that parent is still in the child's best interest.

The Fajota Wake-Up Call

The case every family lawyer should keep in their back pocket is In re Marriage of Fajota (2014) 230 Cal.App.4th 1487. In Fajota, the trial court found that the father committed acts of domestic violence but nonetheless awarded him joint custody anyway, without applying the section 3044 factors to overcome the presumption.

The Court of Appeal reversed. The message was loud and clear: trial courts do not get to sidestep section 3044. Judges must address each statutory factor, make express findings, and only then determine whether the presumption has been rebutted.

For practitioners, this means you do not just present "good parent" evidence. You build your case around the statute itself.

Seven Statutory Factors:

How, then, do you overcome section 3044? Think of it as a checklist:

1. Best Interests of the Child: Show how the child thrives in your client's care. Routines, school involvement, medical appointments, and emotional stability all matter. Judges want to see evidence of the child's well-being, not just the parent's intentions.
2. Completion of a Batterer's Program: If ordered, proof of program completion is non-negotiable. Go further—highlight the tools learned and real-life examples of changed behavior.
3. Substance Abuse Treatment: If relevant, produce certificates or clean test results. If not applicable, make the record clear so there's no lingering question.
4. Parenting Classes: Certificates are helpful, but testimony about practical skills is better. Did your client learn how to use calm-down strategies at exchanges? How to co-parent without escalating conflict? Bring those specifics.
5. Probation or Parole Compliance: If your client is under supervision, prove compliance. If not, say so plainly.
6. Protective Order Compliance: Demonstrate that your client has respected boundaries. Communication apps like TalkingParents or OurFamilyWizard can be your best friend here. Produce logs if needed.
7. No Further Acts of Domestic Violence: This is often the most powerful factor. A clean record since the issuance of the Domestic Violence Restraining Order goes a long way toward showing rehabilitation.

The Bigger Picture

Overcoming section 3044 is not about glossing over the past—it is about proving transformation. For lawyers, it is an opportunity to help clients show the Court that they have moved forward, embraced accountability, and that their child deserves the benefit of both parents in a safe and healthy environment.

The presumption is heavy, but it is not impossible to overcome. With preparation, creativity, and a child-centered approach, family law practitioners can help clients turn section 3044 from an obstacle into a roadmap—one that leads toward reunification, balance, and ultimately, a child's best interests.

Conclusion

If you are considering seeking a modification of a domestic violence restraining order as it relates to custody or visitation, it is critical to have experienced legal guidance. Our team is here to provide clear, strategic advice and to help you navigate the legal standards with confidence, always keeping the best interests of your child at the forefront.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.