Child custody and visitation cases that occur during a divorce can be complicated on their own, but if there are allegations or convictions of domestic violence by one of the parents, even if it wasn’t against the child, makes the case even more complex. California has an important code, Family Code Section 3044, that significantly impacts child custody and visitation. Read on to learn more about the code.
What Is California’s Family Code Section 3044?
Family Code Section 3044 says that if one parent has been convicted of or found to have committed domestic violence in the previous five years, the court may be able to deny child custody or visitation to that parent, regardless of who the victim of the domestic violence was. In other words, if one parent committed acts of domestic violence against the other parent or someone else in the family (elderly parent, for example), they can still be prohibited from having custody or visitation of their child.
What Is a Rebuttable Presumption?
The exact wording of the co000de is that “there is a rebuttable presumption that an award of sole or joint physical custody of a child to a person who has perpetrated domestic violence is detrimental to the child’s best interest”.
Perhaps the key part of that wording is the phrase “rebuttable presumption.” A rebuttable presumption is a legal principle that means something is assumed true unless proven false. In cases of domestic violence, either a conviction of domestic violence or a restraining order stating domestic violence as the reason for the order is enough for the judge to decide that the parent with the domestic violence history may not be allowed to have custody or visitation (or, if allowed visitation, what type of visitation they’re eligible for).
What Can Someone Do to Overcome Rebuttable Presumption in Child Custody and Visitation Cases?
While it’s not automatic that Code Section 3044 means the parent with the domestic violence history can’t have custody or visitation, that parent may be in a tough situation in these cases. Because the prior conviction or restraining order indicates at least some level of guilt, the person who has that background has to provide a preponderance of evidence that they’re not guilty. Suppose the court previously ordered the parent to attend a batterer’s treatment program, alcohol or drug treatment program, or parenting program (or a combination of these), and the parent successfully did so. In that case, the court may be inclined to consider giving some custody or visitation to the parent.
However, if the parent with domestic violence history is on probation or parole and violated the terms of either, is currently under a restraining order, has committed additional acts of domestic violence, or has been found in possession of a firearm while under a restraining order, the court may deny custody or visitation based on that.
What Does “Preponderance of Evidence” Mean?
One way a person with domestic violence history can apply for custody or visitation is to present a preponderance of evidence to the court. Judges and juries usually have one of two standards to determine guilt. One is beyond a reasonable doubt, which means the evidence is so strong that there’s no other outcome possible. A preponderance of evidence is a lesser threshold of proof, requiring that the person presenting the evidence only needs to convince the fact-finder (in this case, likely a judge) that the chances of the claims being true are greater than 50%. This can come into play when one spouse claims domestic abuse, but the other spouse has reason to believe the first spouse has faked injuries to make that claim. If they can provide enough proof to back up their theory, they may be able to receive custody or visitation.
If you’re concerned that your child’s other parent might get custody or visitation if they have a history of domestic violence, working with an experienced family law attorney is highly recommended.
What Types of Visitation Exist in California?
There are four types of visitation in California, and Family Code Section 3044 may cause some to be ruled out. The judge will look at the child’s best interests in all cases.
- Reasonable visitation. This is the most flexible form of visitation. It allows the parents to determine the schedule and frequency. It works best with parents that are able to have a cordial relationship.
- Scheduled visitation. In this case, the court determines the visitation schedule and frequency.
- Supervised visitation. This is used when a judge thinks it’s in the child’s best interests to have regular interaction with both parents but is concerned for the child’s safety with one of the parents. In these cases, visitation is scheduled and supervised by another adult at all times.
- No visitation. As the name implies, one parent gets no visitation at all.
What Should I Do if California’s Family Code 3044 May be Relevant to My Child Custody and Visitation Case?
Call the Sarieh Law Offices at 949-542-6209 (Newport Beach) or 714-542-6200 (Santa Ana) for a free 30-minute in-depth case evaluation. Because Family Code 3044 can have such a significant impact on child custody and visitation cases, it’s best to have an experienced, knowledgeable family law attorney working with you to pursue the best outcomes possible. Because the code and the laws around it are complex, it’s highly advised not to try to handle these matters alone.
