CALIFORNIA FAMILY LAW
...Custody and Visitation
......Factors Considered in Cust./Visit. Award
.........Domestic Violence: Cases
 17 Cards On This Topic:
  • Failure to state on the record the reasons the §3044 presumption has been rebutted is error; doctrine of implied findings does not apply.
  • Out-of-state DVRO triggers §3044 rebuttable presumption against joint custody.
  • The FC §3044 presumption shifts the burden of persuasion that an award of custody would not be detrimental to the best interests of the child to the perpetrator; it does not establish a presumption for or against joint custody.
  • Completion of a batterer's program is not mandatory to rebut FC §3044 presumption.
  • FC §3044(b)(2) does not require a 52-week treatment program.
  • FC §3044 (b) does not require the trial court to specifically discuss each of the seven factors listed.
  • FC §3044 creates a mandatory checklist when finding the presumption against joint custody after DV has been rebutted; if the reasons cannot be given orally, the trial ct. must give them in writing.
  • Trial ct. erred when it found that the FC §3044 presumption would be rebutted once F completed six months of DV counseling; presumption must be rebutted by evidence, and trial ct. had not yet received this evidence.
  • The nature of any order must be determined based on the order's legal effect, not the label the trial court attaches; abuse of discretion to give mother sole custody and F 50/50 visitation.
  • As trial court did not apply the FC §3044 rebuttable presumption re DV to mother's custody modification request, and improperly considered FC §3040, decision was "infected by legal error" and an abuse of discretion.
  • FC §3044 presumption is triggered not by the issuance of a restraining order, but rather by a finding that a parent has engaged in an act of domestic violence against the other parent, the child, or the child's siblings.
  • Since FC §3044 trumped FC §3011, V already protected by DV restraining order did not have burden of producing evidence of DV at custody modification hearing.
  • FC 3044 presumption changes the burden of persuasion, but is not conclusive on the court, even if it resulted in a criminal conviction.
  • DVPA custody order is not a “permanent custody order” for purposes of move-aways.
  • Where no custody mediation, no notice of rebuttable presumption against custody award to domestic violence perpetrator required at protective order hearing.
  • Prejudicial error to exclude murdered W's diary entries; directly relevant to domestic violence and H's ability to control temper.
  • Past acts or crimes may be considered in custody matters.


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