Inside Family Code Section 3044
Family Law Code Section 3044 is a California statute that outlines the legal standards to be applied by judges in binding custody hearings and in determining the outcome of contested custody disputes in cases involving allegations of domestic violence. Family Code section 3044 codifies the "rebuttable presumption" standard, meaning that a history of domestic violence creates a presumption against awarding an otherwise fit parent legal or physical custody of his or her child.
Family Code Section 3044 now applies not only to child custody cases but also to cases concerning spousal support, the allocation of attorney’s fees in family court cases, the division of community estate, the division of separate estate, and other family law matters involving domestic violence. As such, the California courts have the discretion to consider any prior incidents of domestic violence in court cases that regard alimony, attorney’s fees, provocations for division of property, etc .
Codification of Family Code Section 3044
Prior to the enactment of California Family Code section 3044, the courts have had to balance important public interests by awarding custody rights to a parent with the presumption of equal parental rights and the best interests of the child. The California courts tried to reconcile these competing interests by considering the domestic violence history in light of all relevant facts, including the "totality of the circumstances." In a case such as a domestic violence victim having to relocate, the courts balanced the danger of the domestic violence victim and the child. But, by doing so, the courts often disregarded domestic violence in custody hearings in favor of other relevant facts. This created a need for a codified statement of legislative intent, giving judges a clear-cut standard to apply in domestic violence custody cases.
In 2010, California Family Code section 3044 was amended (hereafter "the amendment") to expand the understanding of "domestic violence" within the meaning of Family Code Sections 6300 and 6217. The amendment includes offensive and threatening behavior to include: emotional abuse, coercive acts, verbal abuse, and acts that cause fear of harm, injury, or death.
Legal Significance of Family Code Section 3044
Family Law Code Section 3044 imposes serious consequences on disputed family law matters. Most importantly, it creates a dispositive presumption that awards custody of children to the party opposing a finding of abuse even in the presence of rebutting evidence. Section 3044 also triggers a series of presumptions against custody, including the following:
(a) Any person seeking custody of a child who has committed an act of domestic violence against a party within the previous five years is presumed to be unfit to have sole or joint custody of a child.
(b) This presumption may be rebutted by a preponderance of the evidence.
(c) In making a determination whether the presumption is rebutted, the court shall consider whether there is a threat of harm to the child or children.
By statute, the definitions for the terms "abuse" and "domestic violence" are "as provided in Section 6211 of the Penal Code." (See, Fam. Code, § 6203.) Section 6211 of the Penal Code defines domestic violence as follows:
"Domestic violence" is abuse committed against an adult or a minor who is a spouse, former spouse, cohabitant, former cohabitant,, or person with whom the suspect has had a dating or engagement relationship, or having had a former dating or engagement relationship, or is having or has had a sexual relationship, whether, or not the person is residing in the same household. For purposes of this definition, the following definitions shall apply:
(a) "Abuse" is to intentionally or recklessly cause or attempt to cause bodily injury, or to place a person in reasonable apprehension of imminent serious bodily injury to that person or to another, or to intentionally or recklessly cause another person reasonable apprehension of imminent serious bodily injury to himself or herself, or another.
(b) "Cohabitant" is a nor-married man and woman who have chosen to live together as if they were married. In determining whether persons are cohabitant, consideration shall be given to all of the following factors:
- (1) Sexual relations between the two persons while living together, including, but not limited to, any living together of the parties in the manner of husband and wife.
- (2) Sharing of income or expenses, regardless of who pays or is obligated to pay the expenses.
- (3) Joint use or ownership of a residence.
- (4) The extent of commercial resort to the recognized efforts of the two in dealing with third persons, such as buyers, sellers, landlords, and neighbors.
- (5) The number of years the couple has lived together.
- (6) The continuity of the relationship, which may be shown by length of the relationship.
- (7) The caring for children.
(c) "Dating relationship" means frequent, intimate associations primarily characterized by the expectation of affection or sexual involvement. Casual acquaintanceship or ordinary fraternization between two individuals is not considered a "dating relationship."
(d) "Sexual relationship" means a relationship between two persons, either of the same or opposite sex, that is primarily characterized by the expectation of sexual involvement, which may or may not have been ongoing.
In a child custody dispute, the presumption created by Family Code Section 3044 can result in an award of custody to the non-offending parent. Even if there is contradictory evidence, the presumption under Family Code Section 3044 would presumably allow for the downward modification of custody to the court’s discretion if the presumption is not satisfied.
Burden of Proof Under Family Code Section 3044
The process that a litigant must undertake to have allegations of domestic violence be sufficient to apply Family Law Code 3044 requires more information and substantiation to allow the court to make a true "informed" decision. First, a spouse seeking such a determination must provide a declaration under penalty of perjury (according to California Family Code sections 217 and 2024.050 (d) – as renumbered by Assembly Bill 1406, effective January 1, 2012) of the specific facts establishing the following: The burden of proof for such allegations is clear and convincing evidence. Further, if the issues have not been heard by the court before, additional substantiation (as required by California Evidence Code section 310) is needed and includes the production of competent and credible witnesses and/or admissible documentary evidence, declarations, etc. (see also California Family Code section 217 and California Evidence Code section 782). However, if the allegation(s) have been previously determined by the court in a prior proceeding, then the litigant does not need to present evidentiary to the contrary, only the declarations reciting the specific facts setting forth paragraphs A through D above are required. California Family Code Chapter 3.6 – Domestic Violence Prevention Act – provides for very specific allegations and requirements before the court can issue an order pursuant to Family Code section 3044. There are strict time lines that must be followed, and under California Family Code section 3018.5, with respect to temporary spousal support, it sets forth a 30 day limit if a restraining order of domestic violence is obtained. In addition, Family Code section 3104 stay prohibits a party from obtaining a restraining order pursuant to the Domestic Violence Prevention Act without being entitled to a temporary restraining order. Further, that if an alleged victim is seeking a domestic violence restraining order during the pendency of divorce proceedings, or in conjunction with an initial pleadings, they are required to file a request for domestic violence restraining order preliminary to judgment (Family Code section 6340) – which includes a request for spousal support.
Rebutting the Presumption of Family Code Section 3044
When a party is accused of domestic violence, there are a number of ways in which to attack the presumption created by the Family Law Code section. Here are some examples:
- The alleged victim purportedly was not being truthful. You can attack the victim’s credibility. For example, did they call the police and tell a version of events that does not jibe with what witnesses recounted? Did the alleged victim make contradictory statements?
- Have the alleged victim and the person accused of domestic violence been in a relationship prior to the incident? Did the alleged perpetrator have a history of physical violence, or was this an isolated incident?
- Is the alleged perpetrator actually dangerous? Has the person taken anger management classes , started seeing a mental health provider or got treatment to rehabilitate the damage done by the alleged violence?
- Is the restraining order necessary? Can the parties share custody in some practical way, so that the restraining order is not necessary?
- Is there evidence that the domestic violence may have been provoked?
- Was the perpetrator in a state of extreme emotional distress at the time?
- Did the perpetrator do what he/she did due to a good faith mistake?
There are many different defenses that you can raise at your hearing to challenge the presumption that a restraining order would be in your child’s best interest. A lot of it depends on whether the Court thinks you have rehabilitated yourself. If so, then the Court may not have to enter a restraining order at all, because the children would not be in danger of further domestic violence by you.
Effect on Child Custody and Parenting Time
The impact of Family Law Code 3044 does not end at the initial orders regarding custody and visitation. When a court makes a determination of domestic violence under the statute, the findings will frequently have an impact on the custodial arrangements for the minor child or children in the case. The code section states, "A finding as to whether or not there has been domestic violence shall not be binding on the criminal court unless the domestic violence restraining order issued by the court includes a finding of fact regarding the perpetration of nature and extent of physical injury to the person being protected. If granted visitation is ordered, the visitation shall be supervised by a third party agreed upon by the parties, but if the parties are unable to agree, by the court, and the order shall prohibit overnight visits." Family Code 3044(a)(4)
Family code section 3100(a) sets forth the statutory preference that a parent should not be compelled to entrust the care of a child to the other parent if the court finds that parent to be a perpetrator of domestic violence within the preceding five years. The findings from the family law court may not be binding on the criminal court for purposes of sentencing in a domestic violence matter, but they do become binding for future orders and the presumption applies unless the party requesting to overcome the presumption meets the higher burden of clear and convincing evidence. Family Code 3044(b)(c).
The statutory preference against joint custody or unsupervised visitation can be rebutted, but only in the most extreme circumstances. A finding of domestic violence is difficult to overcome. By contrast, a finding of no domestic violence would constitute a strong basis for rebutting the presumption. This is an important distinction to keep in mind when one party seeks custody from a history of domestic violence or whether the court should award visitation with a minor child without supervision.
Amendments and Case Law
Internal case law includes In re Marriage of L.B., 198 Cal. App. 4th 394. In 2009, the Courts of Appeal in California began to interpret Family Law Code 3044 more stringently, as a result of amendments made to Family Law Code 3044. The amendments to Family Law Code 3044, which went into effect on January 1, 2012, removed the first prong of what had previously been a two-prong test for defining "abuse" absent a conviction.
In re Marriage of L.B., 198 Cal. App. 4th 394 (2011) sheds some light on the impact. The mother received an ex parte domestic violence restraining order that day, upon being interviewed by the case worker of the Oregon Department of Human Services (DHS) as a part of that agency’s ongoing investigation into allegations of domestic violence against mother. The DHS case worker interviewed not only the mother, but also her children and the father. The father was not present at the time of the interview with the DHS case worker.
After interviews were conducted with the children and the father, the DHS caseworker returned to the mother’s home and obtained a copy of mother’s telephone records. At no time did the DHS caseworker interview the father or examine his telephone records.
On November 26, 2007, the court granted the mother temporary custody of the children , and ordered that visitation with the father was to be supervised by a professional service. It also granted the mother’s request to establish protective custody with DHS.
On November 27, 2007, the father filed a motion in opposition to the protective custody order and for reinstatement of family law proceedings in the San Bernardino County Superior Court. After a hearing, the court denied the father’s motion on February 29, 2008.
In addition, prior to the filing of the father’s motion, the courts of California had found that "in evaluating a custodial parent’s motions for extension or modification of temporary custody orders where child abuse is alleged, the family law court must examine facts and events occurring before, during, and after the alleged incidents of abuse." (In re Marriage of L.B.; 198 LR3d 394). In the In re Marriage of L.B. case, the Court of Appeal interpreted the amended version of Family Law Code 3044, holding that even though documentation of certain incidents of domestic violence was unavailable, the family law court should have taken into account the inconsistencies between the mother’s testimony and that of other witnesses in reaching its decision to uphold the restraining order against the father.