Fam Code § 3044 – Rebutting the presumption that award of sole or joint physical or legal custody of a child to a person is detrimental to the best interest of the child
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. . .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. . . This presumption may only be rebutted by a preponderance of the evidence. Fam. Code, § 3044.
It is the public policy of this state to ensure that the health, safety, and welfare of the children shall be the Court's primary concern in determining the best interests of children when making any orders regarding the physical or legal custody or visitation of children. Children have the right to be safe and free from abuse, and the perpetration of child resides is detrimental to the health, safety, and welfare of the child. Fam Code, § 3020.
To overcome the presumption, the perpetrator of domestic violence must demonstrate that giving sole or joint physical or legal custody of a child to the perpetrator is in the best interest of the child. Fam Code, § 3044.
There are several factors the Court will take into consideration such as whether:
(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. Fam Code, § 3044.
In the case of De Boynton v. De Boynton (1955) 137 Cal.App.2d 106, 111, the Court concluded that the trial court did not abuse its discretion when the father was given non-supervised custody of his daughter.. The Court reasoned that the evidence presented during trial, was sufficient to warrant the finding that Father was fit to have his daughter's physical custody. Ibid. Among the evidence presented at trial was the fact that Father had a comfortable home, he supervised his daughter's diet, her activities, and she has a room of her own. Ibid.
In S.Y v. Superior Court (2018) 29 Cal.App.5th 324, 344, the trial court acted within its discretion in determining father had rebutted the domestic violence presumption that his custody was detrimental to best interest of child with respect to factors regarding completion of batterer's treatment program and parenting classes, even though father had not completed program and classes; father's current active, age-appropriate interactions with child were far more relevant than completion of classes in determining if awarding joint custody to father would be detrimental to child's best interest.
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- This blog is intended for information purposes only and is not intended to be legal advice.