Another Family Law Case Limits Authority to Allow Abusers Custody

The effect of domestic violence on custody and visitation of children is outlined in Family Code section 3044. Family Code section 3044 essentially states if a Court finds a party to have committed domestic violence in the last five years, the Court must assume that awarding sole or joint physical or legal custody of a child to a person who is found to have committed domestic violence is detrimental to the best interest of the child. (Family Code, § 3044(a).) This means if someone is found by the Court to have committed domestic violence, whether a restraining order ends up being issued or not, the Court cannot make custody and visitation orders in which the parties share legal and physical custody, even if the parties stipulate otherwise.

However, this presumption is rebuttable by a preponderance of the evidence. To overcome the presumption, the perpetrator must show that physical and legal custody is in the child’s best interest and has satisfied several factors outlined in Family Code section 3044(b). Those factors are the following:

• An award of custody is in the child’s best interest
• The perpetrator has successfully completed a batterer’s treatment program
• The perpetrator has successfully completed a drug or alcohol abuse program
• The perpetrator has successfully completed a parenting class
• The perpetrator is on probation or parole and has or has not complied with the terms and conditions of probation or parole
• The perpetrator has a restraining order against him or her and has or has not complied with the restraining order’s terms and conditions
• The perpetrator has committed further acts of domestic violence
• The Court has determined that the perpetrator is a restrained person and is in possession or control of a firearm or ammunition

If the Court has found that the perpetrator has overcome the presumption outlined in Family Code section 3044(a), the Court must make specific findings as to each of the factors mentioned above and state its reasons why the factors have been satisfied. (Family Code §3044(f)(2).)

Recently, in the case of J.G. v. K.G. (2025) 2025 DJDAR. 3677, an appellate court reaffirmed the Court mandate to apply the Family Code section 3044 presumptions and make specific findings if it believes the perpetrator has overcome the presumption. The court held that a court must apply the Family Code section 3044 presumption and cannot make an order for joint legal or physical custody unless the perpetrator overcomes the presumption. The Court must do these things despite a stipulation between the parties for joint physical and/or legal custody.

In the J.G. case, the trial Court in 2021 determined Father perpetrated domestic violence against Mother in 2019. The parties also agreed to joint legal custody and after hearing no objections from either side the Court affirmed the agreement of joint legal custody. Father was also to complete a parenting course, anger management course and undergo alcohol testing.

In December 2022, the parties were divorced.

In March 2023, Mother requested a modification of the current custody and visitation orders and asked the Court to give her sole legal and physical custody. In September 2023, a different judge than the one in 2021 heard Mother’s request to modify custody and noted the Court previously made findings under Family Code section 3044 and that the presumption still applied. The Court then ordered the parties back to child custody recommending counseling and asked the counselor to consider the presumption and what steps Father had taken to overcome the presumption. The Counselor reported Father had provided no evidence to support his assertions that he completed the anger management course and the co-parenting class. The counselor determined that the presumption had not been overcome and it was in the child’s best interest to maintain the current parenting plan.

Later at the hearing Mother argued that Father had not overcome the presumption and failed to complete the ordered programs. Father argued that he completed the course and claimed showing proof was unnecessary at this time since the parties agreed to joint custody two years earlier. Father also argued that he found it disturbing that Mother would argue that Father was not entitled to equal custody because he did not complete the courses because she agreed to joint custody earlier. The Court found the current orders remained in the child’s best interest and concurred with Father’s arguments, even stating the Family Code section 3044 presumptions were rebutted.

The J.G. appeals panel court found no evidence in the record that either the first or second judge fulfilled the Court’s mandatory duty in finding the Family Code section 3044 presumption was rebutted. The Court said the first judge found there to be abuse that triggered the Family Code section 3044 presumption but faced with no objection reaffirmed the joint legal custody agreement. However, the first judge did not find the presumption was rebutted nor did the judge address all the rebuttal factors or state on the record the reasons for its decision. The Court found the second judge understood that the Family Code section 3044 presumption applied and simply stated the presumption was rebutted. However, the second judge did not identify when or how the presumption was rebutted or address any of the rebuttal factors in Family Code section 3044. The appellate Court held that once the Family Code §3044 presumption is triggered the Court must determine on the record the presumption had been overcome before it can award sole or joint legal or physical custody to the perpetrator. Therefore, the trial Court decision was reversed.

The J.G. justices said for the Court to rely on the parties’ agreement to jointly share custody to overcome the presumption was error. The first judge’s acceptance of the stipulation to joint custody without complying with Family Code section 3044 effectively ignored the child’s best interests. The parties’ stipulation could not absolve the court of its mandatory obligation to consider and balance the statutory factors in making the requisite finding. As a result, absent a finding that the perpetrator rebutted the presumption, an order maintaining joint legal custody was in error.

The appellate court determined the parties’ stipulation ran afoul of Family Code section 3044. When the presumption is triggered, the Court may not rely on the parties’ stipulation to award joint custody unless and until the perpetrator successfully rebuts the presumption because, as a matter of law, providing the abusive parent with custody of the child is presumed contrary to the best interest if the child. Therefore, one must be careful in custody and visitation stipulations in order to not run afoul of the court’s mandates under Family Code section 3044.