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DVRO and Child Custody in California: How the Family Code 3044 Presumption Works Against a Restrained Parent and How to Rebut It
By Matthew Barhoma, founding attorney, Power Trial Lawyers. Last updated November 2026.
Quick answer: Under Family Code section 3044, when a court finds that a parent seeking custody has perpetrated domestic violence within the previous five years, there is a rebuttable presumption that awarding that parent sole or joint physical or legal custody is detrimental to the child’s best interest. A domestic violence restraining order (DVRO) issued after a hearing is that kind of finding. The restrained parent can rebut the presumption by a preponderance of the evidence, but only if the court finds that custody with that parent is in the child’s best interest and that seven statutory factors, on balance, support the legislative findings in Family Code section 3020. The court must make specific findings on each factor, in writing or on the record.
For most parents served with a DVRO petition, custody is the real stake. This article explains the presumption from the restrained parent’s side. For a broader overview see our page on how DVROs affect child custody rights.
Key facts about Family Code 3044
- What it does: Creates a presumption against sole or joint legal custody and sole or joint physical custody for a parent found to have committed domestic violence.
- Look-back period: The finding must concern domestic violence perpetrated within the previous five years.
- Who the violence must be against: The other parent, the child, the child’s siblings, or the perpetrating parent’s own parent, current spouse, cohabitant, or dating or engagement partner.
- Standard to rebut: Preponderance of the evidence.
- Required findings: The court must address every factor in subdivision (b) and state its reasons in writing or on the record, consistent with Jaime G. v. H.L. (2018) 25 Cal.App.5th 794.
- What it does not do: It does not terminate parental rights and does not automatically end visitation.
What triggers the presumption
A DVRO after a hearing
A finding of abuse sufficient to support a restraining order under the Domestic Violence Prevention Act necessarily triggers the section 3044 presumption (S.M. v. E.P. (2010) 184 Cal.App.4th 1249; Christina L. v. Chauncey B. (2014) 229 Cal.App.4th 731). Section 3044, subdivision (c), defines “perpetrated domestic violence” to include not only bodily injury, sexual assault, and threats of serious bodily injury, but also behavior such as threatening, striking, harassing, destroying personal property, or disturbing the peace of another for which a court may issue an order under Family Code section 6320. A DVRO based entirely on non-physical conduct therefore triggers the presumption just as a DVRO based on violence does. See what counts as abuse in a California DVRO.
A criminal conviction
Under subdivision (d)(1), the finding requirement is satisfied by a conviction within the previous five years, after trial or a plea of guilty or no contest, of a crime against the other parent that qualifies as domestic violence, including Penal Code sections 243(e), 273.5, 422, and 646.9. A plea bargain in a criminal case can decide the custody case. See our comparison of Penal Code 273.5 and 243(e)(1).
A finding by any court
Under subdivision (d)(2), a finding by another court counts, whether or not that court is hearing the custody case. In Noble v. Superior Court (2021) 71 Cal.App.5th 567, the Court of Appeal held that an out-of-state domestic violence order triggered the presumption and that the presumption applies to interim custody orders, not only final ones.
What does not trigger the presumption
| Situation | Does 3044 apply? | Why |
|---|---|---|
| Temporary restraining order (TRO) only | No finding yet | A TRO is issued without a hearing; the court can still make temporary custody orders under Family Code section 6323 |
| DVRO petition denied after hearing | No | No finding of domestic violence was made (Jennifer K. v. Shane K. (2020) 47 Cal.App.5th 558) |
| DVRO granted, but neither parent is asking for custody orders | No | The presumption arises when a party is seeking custody (In re Marriage of Willis and Costa-Willis (2023) Cal. Ct. App., Fourth Dist., Div. Three, No. G061528) |
| Domestic violence found more than five years ago | Presumption does not arise | The statute requires a finding of violence within the previous five years, though the court may still weigh the history under Family Code section 3011 |
| Allegation in a declaration with no finding | No | The court must first determine whether section 3044 applies before issuing custody orders (subdivision (g)) |
Because a denied petition produces no finding, defeating the DVRO at the hearing is the most complete way to avoid the presumption. See how to beat a domestic violence restraining order in California.
What the presumption does once triggered
The presumption applies to both legal custody (decision-making about school, health care, and religion) and physical custody (where the child lives), and to both sole and joint awards. Courts cannot avoid it by relabeling. In Celia S. v. Hugo H. (2016) 3 Cal.App.5th 655, the trial court found domestic violence and then ordered an equal timeshare that it called “visitation.” The Court of Appeal reversed: a 50-50 schedule is joint physical custody, whatever it is called.
The restrained parent can still receive visitation. The court decides the schedule and whether visits or exchanges should be supervised, considering the child’s safety under Family Code section 3100.
The two-part test for rebutting the presumption
To overcome the presumption, the court must find both of the following.
Part one: best interest of the child
The parent must demonstrate that giving them sole or joint custody is in the child’s best interest under Family Code sections 3011 and 3020. The statute removes the usual thumb on the scale: the preference for frequent and continuing contact with both parents may not be used to rebut the presumption, in whole or in part.
Part two: the seven statutory factors
The court must find that these factors, on balance, support the legislative findings in section 3020, which make the child’s health, safety, and welfare the primary concern.
| Factor in section 3044(b)(2) | What the court asks | Evidence that addresses it |
|---|---|---|
| (A) Batterer’s treatment program | Has the parent successfully completed a program meeting the criteria of Penal Code section 1203.097(c)? | Certificate of completion and attendance records from a probation-approved 52-week program |
| (B) Alcohol or drug counseling | If the court finds it appropriate, was it completed? | Program completion letter; test results where relevant |
| (C) Parenting class | If the court finds it appropriate, was it completed? | Certificate from a recognized parenting course |
| (D) Probation or parole | Is the parent on probation or parole, and in compliance? | Probation progress reports; proof of no violations |
| (E) Restraining order compliance | Is the parent restrained, and in compliance? | Absence of violation reports; records of exchanges conducted as ordered |
| (F) Further domestic violence | Has the parent committed any further acts? | Clean record since the finding; testimony of neutral witnesses |
| (G) Firearms | Has a court determined under Family Code section 6322.5 that the parent possesses a firearm or ammunition in violation of the order? | Filed relinquishment receipt (form DV-800) and proof of compliance |
A generic anger management class is not the batterer’s treatment program described in factor (A). The program must meet the criteria in Penal Code section 1203.097, subdivision (c). Parents who complete the wrong program lose months.
The court must make findings on every factor
Subdivision (f) of section 3044 codifies Jaime G. v. H.L. (2018) 25 Cal.App.5th 794: when a court concludes the presumption has been overcome, it must make specific findings on each factor and state its reasons in writing or on the record. This cuts both ways. A custody award to a restrained parent without those findings is vulnerable to reversal, and a restrained parent seeking custody must give the judge evidence on each factor so that the findings can be made.
Appellate decisions that control
| Case | Holding |
|---|---|
| In re Marriage of Fajota (2014) 230 Cal.App.4th 1487 | Awarding joint legal custody after finding domestic violence, without applying section 3044, was reversible error |
| Christina L. v. Chauncey B. (2014) 229 Cal.App.4th 731 | A restraining order finding triggers the presumption; custody order reversed for failure to apply it |
| Celia S. v. Hugo H. (2016) 3 Cal.App.5th 655 | A court cannot avoid the presumption by labeling a 50-50 timeshare “visitation” |
| Jaime G. v. H.L. (2018) 25 Cal.App.5th 794 | The court must make specific findings on each rebuttal factor; now codified in section 3044(f) |
| S.Y. v. Superior Court (2018) 29 Cal.App.5th 324 | An award of custody to a parent found to have committed domestic violence was upheld where the trial court properly found the presumption rebutted |
| Noble v. Superior Court (2021) 71 Cal.App.5th 567 | The presumption applies to interim custody orders and is triggered by an out-of-state order |
| City and County of San Francisco v. H.H. (2022) 76 Cal.App.5th 531 | Joint custody order reversed where the court did not properly apply the presumption |
| In re Marriage of Willis and Costa-Willis (2023) Cal. Ct. App., Fourth Dist., Div. Three, No. G061528 | The presumption does not arise in a DVRO proceeding where neither party seeks custody |
| C.C. v. D.V. (2024) 105 Cal.App.5th 101 | Joint custody award reversed where a restraining order had issued by stipulation and the court did not determine that the presumption had been overcome |
| In re Marriage of J.G. and K.G. (2025) 110 Cal.App.5th 1214 | The parties’ agreement to joint custody does not replace the findings the court must make under section 3044 |
The lesson of S.Y. v. Superior Court is that rebuttal is possible. The lesson of the other cases is that it must be done by the statute, factor by factor.
A step-by-step plan for a restrained parent
- Comply with the restraining order without exception. Every violation is evidence under factor (E) and a potential new criminal case under Penal Code section 273.6.
- Surrender firearms on time and file the receipt. Factor (G) turns on a court determination of unlawful possession. See firearm surrender after a restraining order.
- Enroll in the correct program early. A 52-week batterer’s treatment program takes a year. The five-year clock is long, but the first custody hearing may be weeks away.
- Complete a parenting class and, if substance use was alleged, counseling. Do not wait to be ordered.
- Exercise every minute of the visitation you are given. Consistency, punctuality, and appropriate conduct at exchanges build the best-interest showing in part one.
- Document parenting, not grievances. School involvement, medical appointments, activities, and a safe home are relevant. Complaints about the other parent are not rebuttal evidence.
- File a request for order when the record is ready. A motion to modify custody should present evidence on each of the seven factors in the same order as the statute.
- Ask for express findings. Request that the court state its findings on each factor on the record, and arrange for a court reporter.
Options before the finding is made
The strongest position is to prevent the finding. Before a DVRO hearing, a respondent parent should evaluate three things: the strength of the defense on the merits, whether the criminal case (if any) can be resolved without a conviction that would independently trigger the presumption, and whether any negotiated resolution would or would not include a finding of domestic violence. Do not assume that a restraining order entered by agreement avoids the presumption. In C.C. v. D.V. (2024) 105 Cal.App.5th 101, a one-year restraining order was issued on the parties’ stipulation, and the Court of Appeal later reversed a joint custody award because the trial court had not determined that the section 3044 presumption was overcome. In In re Marriage of J.G. and K.G. (2025) 110 Cal.App.5th 1214, the court held that the parents’ agreement to joint custody could not take the place of the required findings. Any stipulation should be reviewed by counsel before it is signed.
If the order has already been granted and the court made a legal error, the remedy may be an appeal. See appealing a DVRO in California. The order can also be modified or terminated later under Family Code section 6345. See modifying or terminating a DVRO.
Frequently asked questions
Does a restraining order mean I lose custody of my child in California?
Not automatically. A DVRO after a hearing triggers a rebuttable presumption against sole or joint custody under Family Code section 3044. The restrained parent can still receive visitation and can rebut the presumption with evidence on the statutory factors.
How long does the Family Code 3044 presumption last?
The presumption applies when a court finds domestic violence was perpetrated within the previous five years. After that period the presumption no longer arises from that conduct, although the court may still consider the history of abuse when deciding the child’s best interest under Family Code section 3011.
Does a temporary restraining order trigger the 3044 presumption?
No. A temporary restraining order is issued without a full hearing and is not a finding that domestic violence occurred. The court can, however, make temporary custody and visitation orders as part of the TRO.
Can I get 50-50 custody with a DVRO against me?
Only if the court finds the presumption rebutted. An equal timeshare is joint physical custody, and under Celia S. v. Hugo H. a court cannot order it for a parent found to have committed domestic violence without first finding the presumption overcome under the statutory test.
What are the factors to rebut the 3044 presumption?
The court considers whether custody with the parent is in the child’s best interest and seven factors: completion of a batterer’s treatment program, alcohol or drug counseling, a parenting class, compliance with probation or parole, compliance with the restraining order, whether further domestic violence occurred, and whether the parent unlawfully possesses a firearm or ammunition.
Does anger management count as a batterer’s intervention program?
No. Factor (A) requires a batterer’s treatment program that meets the criteria in Penal Code section 1203.097, subdivision (c), which is a 52-week program. A short anger management course does not satisfy that factor.
Does the presumption apply if the abuse was not physical?
Yes. Section 3044 defines perpetrating domestic violence to include harassing, destroying property, and disturbing the peace of another, which covers non-physical conduct that supports an order under Family Code section 6320.
Does a domestic violence conviction affect custody?
Yes. A conviction within the previous five years for a domestic violence crime against the other parent, including after a no contest plea, satisfies the finding requirement and triggers the presumption even without a DVRO.
Can I still see my children if the presumption applies?
Usually yes. Section 3044 restricts custody, not all contact. The court sets visitation and decides whether supervision or supervised exchanges are needed for the child’s safety.
Can the custody order be changed after I complete the programs?
Yes. A parent can file a request to modify custody and present evidence on each rebuttal factor. The court must make specific findings on every factor before awarding sole or joint custody to a parent subject to the presumption.
Talk to a California DVRO defense lawyer
Power Trial Lawyers represents respondents in domestic violence restraining order hearings across Southern California, where the custody consequences are decided along with the order. If you have been served and are looking to retain an attorney, call (888) 808-2179 or contact us.
This article is general information, not legal advice, and reading it does not create an attorney-client relationship. Custody outcomes depend on the facts of each family and the findings of the court. Statutes cited are current as of November 2026. Past results do not guarantee a similar outcome.