How a Domestic Violence Case Affects Child Custody in California

Last reviewed: August 2026

Of everything a domestic violence case does to a person’s life, this is the part that lasts longest and gets explained least. A finding of domestic violence flips the starting point in a California custody case against the person who committed it, for five years. It does not take a conviction. It does not take a jury. And most people learn about it after the decision that triggered it has already been made.

You do not have to be convicted of anything for this to happen to you.

The law turns on “a finding by the court,” not on a criminal conviction. A judge in a restraining order hearing, in a family case, or in a different court entirely can make that finding. A criminal conviction is one way to get there. It is not the only way, and it is not required.

The short version

The law is Family Code 3044. It creates a presumption against giving custody to a person found to have committed domestic violence in the last five years.
It covers sole AND joint custody, physical AND legal. All four, not just the obvious one.
It is rebuttable, meaning it can be overcome. It is a starting point, not a permanent bar.
Overcoming it takes two showings, not one, and there is a list of seven things the court weighs.
The judge has to apply it even if nobody asks. Courts get reversed for skipping it.
Even both parents agreeing does not automatically get around it.

What the presumption actually says

Family Code 3044 begins: “Upon a finding by the court that a party seeking custody of a child has perpetrated domestic violence within the previous five years against the other party seeking custody of the child, or against the child or the child’s siblings,” there is “a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child.”

Strip that down and you get four moving parts.

A finding by the court. Not an arrest, not an accusation, not a police report. A court has to find it.
Within the previous five years. There is a clock on it.
Against the other parent, the child, or the child’s siblings. The current version also reaches certain other people the person has a relationship with.
Sole or joint, physical or legal. There is no version of custody the presumption skips.

And the presumption is against you being given custody at all, not against you getting a lot of it. That is the piece people misread most often. It does not shave your time down. It starts the court from the position that giving you custody is bad for the child.

Nothing here bars you from custody. It moves where the conversation begins, and it puts the work on you.

What counts as a “finding”

This is the question that decides whether the section applies to you at all, and the statute answers it more broadly than people expect.

Family Code 3044(d)(1) says the finding requirement “shall be satisfied by, among other things, and not limited to,” evidence of a conviction within the previous five years, after trial or a plea of guilty or no contest, of a crime against the other party that fits the Family Code definitions of domestic violence and abuse. It names examples by section: Penal Code 243(e), 261, 273.5, 422, 646.9, and former 262.

Read the phrase “among other things, and not limited to” again. A conviction is one route in. The statute expressly says it is not the only one.

Then 3044(d)(2) goes further: the requirement is also satisfied if a court “whether that court hears or has heard the child custody proceedings or not” has made a finding based on conduct in the previous five years. So a finding made by a different judge, in a different case, in a different courthouse, counts here.

This is why a restraining order hearing is much bigger than it looks.

If a judge grants a domestic violence restraining order after a hearing, that judge has made findings. Those findings can follow you into a custody case you have not even filed yet, in front of a judge you have never met.

People treat the restraining order hearing as the small procedural thing and the custody case as the real fight. It is often the other way around. The restraining order hearing is where the facts get decided.

The statute also defines what “perpetrated domestic violence” means for this purpose, in 3044(c): intentionally or recklessly causing or attempting to cause bodily injury, sexual assault, placing someone in reasonable apprehension of imminent serious bodily injury, or engaging in behavior “involving, but not limited to, threatening, striking, harassing, destroying personal property, or disturbing the peace of another” for which a court could issue an order under Family Code 6320.

Notice that no injury is required. Threatening, harassing, destroying property and disturbing the peace are all in there.

How the presumption gets overcome

It can be. Family Code 3044(a) says it “may only be rebutted by a preponderance of the evidence,” which means more likely than not. That is the ordinary civil standard, not a high one.

But the structure is demanding, and this is where people go wrong. Under 3044(b), the court has to find two separate things, not one.

First, that giving you sole or joint custody is in the child’s best interest under Family Code 3011 and 3020.
Second, that a list of additional factors, “on balance,” supports the legislative findings in Family Code 3020, which are the findings that put child safety first.

And the most natural argument is taken away from you by name.

Family Code 3044(b)(1) says that in deciding best interest, “the preference for frequent and continuing contact with both parents” and the preference for contact with the noncustodial parent “may not be used to rebut the presumption, in whole or in part.”

“A child needs both parents” is the argument almost everyone reaches for first. The statute closes it off in as many words. Build the case on something else.

Read more: the seven factors, the findings the judge must make, and the cases that enforce them

Family Code 3044(b)(2) lists the additional factors. There are seven, lettered (A) through (G). Quoted from the current text:

(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) A determination under Family Code 6322.5 that the perpetrator is a restrained person in possession or control of a firearm or ammunition in violation of Family Code 6389, Code of Civil Procedure 527.9, or Penal Code 18120.

Read (A) through (C) as a to-do list, because that is what they are. The batterer’s program is the same 52-week program a criminal court orders in a domestic violence case, so a person doing it under a criminal sentence is already building the family law record. Alcohol or drug counseling and a parenting class are the other two, each qualified by whether the court thinks it is appropriate.

Read (D) through (G) as a list of ways to lose. Every one of them is about compliance and about what you did after. Violating probation, violating the restraining order, a new incident, or being caught with a firearm you were ordered to give up.

The judge cannot just say the presumption is overcome. Family Code 3044(f)(2) requires the court, if it finds the presumption rebutted, to “state its reasons in writing or on the record” as to why the best interest prong is satisfied and why the factors on balance support the section 3020 findings.

And 3044(f)(1) is unusual: the Legislature wrote a case into the statute. It says the subdivision should be “interpreted consistently with the decision in Jaime G. v. H.L. (2018) 25 Cal.App.5th 794, which requires that the court, in determining that the presumption in subdivision (a) has been overcome, make specific findings on each of the factors in subdivision (b).”

The appellate courts have enforced this hard, and the pattern is consistent:

Jaime G. v. H.L. (2018) 25 Cal.App.5th 794. The court must address each factor specifically. Failure means reversal and a new hearing. Now written into the statute itself.
Abdelqader v. Abraham (2022) 76 Cal.App.5th 186. The usual rule that an appellate court will imply findings a trial court did not make does not apply to section 3044. No party has to ask for the findings, and their absence is not harmless.
Noble v. Superior Court (2021) 71 Cal.App.5th 567. The court has to determine whether the section applies even where no party raises it.
Celia S. v. Hugo H. (2016) 3 Cal.App.5th 655. The presumption is mandatory once triggered. A judge does not get to decide whether to apply it.
In re Marriage of Fajota (2014) 230 Cal.App.4th 1487. Failing to apply the presumption after a domestic violence finding is an abuse of discretion.
C.C. v. D.V. (2024) 105 Cal.App.5th 101. A rebuttal finding cannot be implied.
In re Marriage of J.G. and K.G. (2025) 110 Cal.App.5th 1214. The parents agreeing to joint custody is not by itself enough to rebut the presumption.

That last one is worth sitting with if you are on either side of this. Two parents can walk into court holding a signed agreement and the judge still has to run the analysis. The presumption is not there for the parents’ benefit and they cannot waive it between themselves.

Statutory timing rules worth knowing. Under 3044(g), where custody is sought and domestic violence has been alleged, the court has to decide whether the section applies before issuing a custody order, unless it continues the matter, in which case it can make a temporary order for a reasonable time. Under 3044(h), the court has to tell the parties the section exists and give them a copy of it before custody mediation.

And under 3044(e), when making a finding that a party perpetrated domestic violence, the court “may not base its findings solely on conclusions reached by a child custody evaluator or on the recommendation of the Family Court Services staff,” but has to consider the admissible evidence the parties put in.

Visitation is a separate question

Losing the custody presumption is not the same as losing your children.

Family Code 3100(b)(1)(A) says that where a protective order has been issued restraining a parent, the court “shall consider whether the best interest of the child requires that visitation by that parent be suspended, denied, or limited to situations in which a third person, specified by the court, is present, including virtual visitation.” A parent may propose someone suitable to supervise, though the court is not required to accept the person or to order supervision at all.

What the court weighs, under 3100(b)(2): “the nature of the acts that led to the protective order, the period of time that has elapsed since that order, and whether the restrained party has committed further acts of abuse.”

Time and clean conduct are doing the work in that sentence. They are the two things you can still affect.

The statute now defines “virtual visitation” in 3100(f) as audiovisual electronic contact as part of a parenting plan, which can be supervised or unsupervised. That is a newer option and it is worth asking about where in-person supervision is impractical.

Where a restraining order case is running, Family Code 6323 lets the court make temporary custody and visitation orders, and 6323(c) requires the order to specify the time, day, place and manner of transferring the child, to limit the child’s exposure to conflict. If the protected parent is staying at a shelter or other confidential location, the order has to be written so it does not disclose where.

What this means if you are the one facing the charge

The most useful thing on this page for you is a sequencing point.

Tell your criminal lawyer about your children at the first meeting. Not at sentencing. The first meeting.

Here is why. A criminal case can be resolved in a way that feels manageable, a misdemeanor, probation, a program, no jail. And that same resolution can be a conviction that lands inside the five year window and satisfies the finding requirement in the family court. The two systems do not talk to each other, and the criminal courtroom is not where anybody will raise it.

A lawyer who knows custody is on the table can think about which section you plead to and what findings get made. A lawyer who finds out afterward cannot.

Our companion guides: what happens after a domestic violence charge, and whether the other person can drop the case.

What this means if you are the one asking for protection

Two things, and the first is the one people miss.

The restraining order hearing is where the record gets made. If you are going to ask for a domestic violence restraining order, understand that the findings a judge makes there can carry into custody. That is a reason to put your evidence in properly rather than treating it as a formality: the messages, the photographs, the dates, the recordings.

Second, the presumption is not self-executing in practice even though it is mandatory in law. Courts do get reversed for missing it, which tells you it gets missed. If a finding exists in your case, say so clearly and early, and make sure the court knows what it is and when it was made.

How to ask for an order: the step by step guide. And the full guide to domestic violence restraining orders, including how the hearing really works.

The five year clock, and what happens after

The presumption reaches conduct “within the previous five years.” Once a finding is old enough to fall outside that window, the presumption from that finding no longer applies.

That does not make the history disappear. Family Code 3011(a)(2) makes a history of abuse a best interest factor in its own right, with no five year limit written into it, and 3011(a)(2)(B) lets the court require independent corroboration before considering abuse allegations.

So the honest picture: the presumption expires, the relevance does not. After five years you are back to arguing best interest like everyone else, rather than starting from behind. That is a meaningful improvement and it is not the same as a clean slate.

One honest observation about all of this, offered as an observation and not as a prediction about your judge. The reason there is a steady line of appellate decisions reversing custody orders for skipping this analysis is that it does get skipped. Courts are busy, hearings are short, and section 3044 requires findings that take time to make properly.

That is not a reason to distrust the court. It is a reason to make sure the record is clear. If a domestic violence finding exists in your case, do not assume everyone in the room knows about it or knows when it was made. Say what it is, say when, and say which court made it.

Do you need a lawyer

For this, yes, and more than for most things on this site.

This is the one area where two separate court systems act on the same facts and neither one is watching the other. A criminal defense lawyer who does not ask about children can hand you a resolution that costs you custody. A family lawyer who does not know what happened in the criminal case cannot fix it afterward.

If you cannot afford both, tell each one about the other case, in the first meeting, and ask directly what the other proceeding will do to this one. That question costs nothing and it is the one most people never think to ask.

This is general information, not legal advice. If you are in danger, call 911. Talk to a California attorney about your situation.