Protecting Your Children in California: Custody Considerations with Domestic Violence Restraining Orders

Custody Considerations with Domestic Violence Restraining Orders: California’s Presumption Against Restrained Parents in Custody Decisions

 

California Family Code Section 3044 creates a presumption against awarding sole or joint custody to a parent who has committed domestic violence against the other parent or the child.

Seeking legal counsel when navigating child custody amidst domestic violence is crucial. California law prioritizes the child’s best interests, and a domestic violence restraining order (DVRO) can significantly impact custody arrangements. This article provides an overview of relevant California laws and considerations for individuals facing these complex issues.

This presumption can be overcomeif the perpetrator demonstrates that:

The perpetrator of domestic violence has demonstrated that giving sole or joint physical or legal custody of a child to the perpetrator is in the best interest of the child pursuant to Sections 3011 and 3020. In determining the best interest of the child, the preference for frequent and continuing contact with both parents, as set forth in subdivision (b) of Section 3020, or with the noncustodial parent, as set forth in paragraph (1) of subdivision (a) of Section 3040, may not be used to rebut the presumption, in whole or in part.

The Court is Required to Apply the Presumption that the parent against whom a Restraining Order has issued may NOT have joint legal or physical custody.  This is true even if the protected party DOES NOT claim the abuse occurred in front of the child or related in any way to a child. FURTHER, Even if the protected party AGREES that the other parent should have joint legal and physical custody the Court cannot order it unless and until the Court conducts the full rebuttal analysis required by Family Code Section 3044. 

On May 2, 2025 the California Court of Appeal reiterated this rule clearly in the case  J.G. v. K.G.  The case involves J.G. (Father) and K.G. (Mother) disputing custody after findings of domestic violence by Father against Mother in 2019. Family Code section 3044 establishes a rebuttable presumption that awarding custody to a parent who committed domestic violence is detrimental to the child’s best interest. Despite this, joint custody was agreed upon in 2021 without the presumption being properly rebutted. In 2023, Mother sought sole custody, arguing the presumption was never rebutted and the court failed to make required findings. The second judge denied her request, citing the prior agreement but failed to address section 3044’s mandatory requirements. The appellate court found this an abuse of discretion, as neither judge properly applied section 3044 or made required findings. The court reversed the custody order and remanded the case for a new hearing to reassess custody, ensuring compliance with section 3044 and considering the child’s best interest.

The Additional factors which the Court considers in determining custody orders are in Domestic Violence Cases:

(A) The perpetrator has successfully completed a batterer’s treatment program that meets the criteria outlined in subdivision (c) of Section 1203.097 of the Penal Code.

(B) The perpetrator has successfully completed a program of alcohol or drug abuse counseling, if the court determines that counseling is appropriate.

(C) The perpetrator has successfully completed a parenting class, if the court determines the class to be appropriate.

(D) The perpetrator is on probation or parole, and has or has not complied with the terms and conditions of probation or parole.

(E) The perpetrator is restrained by a protective order or restraining order, and has or has not complied with its terms and conditions.

(F) The perpetrator of domestic violence has committed further acts of domestic violence.

(G) The court has determined, pursuant to Section 6322.5, that the perpetrator is a restrained person in possession or control of a firearm or ammunition in violation of Section 6389.

They have not committed domestic violence within the past two years.

Maintaining their parental role is in the child’s best interests, considering factors like:

The nature, frequency, and severity of the past violence.

The perpetrator’s efforts to prevent future violence.

The history of safe and positive interactions between the child and the perpetrator.

The history of caring for the child’s needs.

The child’s age and attachment to each parent.

Temporary Custody Orders with DVROs:

A DVRO can include temporary custody arrangements while the court determines a long-term plan. These temporary orders often grant the protected parent sole physical and legal custody.

Impact of a Final DVRO on Custody:

A final DVRO remains in effect regardless of any custody orders. This means the perpetrator cannot violate the DVRO’s terms, such as limitations on contact with the child, even if they have visitation rights.

Learn about: The July 23, 2025 Decision Which Allows California Family Law Courts to Issue Restraining Orders Based On Conduct Which Occurred Years Ago:  I the case X.K. v. M.C. the California Appellate Court stated that a Family Law Trial court may issue a restraining order based on conduct which occurred years ago, even if the the person who applies for the restraining order does not allege any recent conduct which would violate the California Domestic Violence Act.

Read More About the X.K. v. M.C. case here.

Domestic Violence Restraining Order Applications Which Include Allegations of Child Abuse: In December 2025, the California Appellate Court addressed the introduction of out of court statements by the child regarding allegations of child abuse including sexual abuse. The Court ruled such statements are admissible in the hearing on domestic violence restraining orders. This case, Marriage of M.P. and M.C. (2025), is discussed in this post.

Seeking Legal Guidance:

Navigating child custody matters involving domestic violence is highly complex and requires legal expertise. An experienced family law attorney can advise you on your specific situation, represent you in court, and advocate for your child’s best interests.

Monitored Visitation?

Learn about monitored visitation and how a parent can argue for monitored visitation and how a parent can oppose monitored visitation in this article.

If you are facing a Domestic Violence Restraining Order situation as the moving party or the responding party, call us for a free consultation. 310 282 7521, or  contact us here.