Alameda County Superior Court
Family Court Self Help

Family Code Section 3044

Subsection (f) requires that a copy of this Family Code Section be given to the parties in advance of any custody mediation in all cases in which a party has alleged that the other party has perpetrated domestic violence.

Section 3044 of the Family Code reads as follows (amended as of January 1, 2004):

3044. (a) Upon a finding by the court that a party seeking custody of
          a child has perpetrated domestic violence against the other
          party seeking custody of the child or against the child or
          the child's siblings within the previous five years, 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, pursuant to Section 3011.  This
          presumption may only be rebutted by a preponderance of the
          evidence.

      (b) In determining whether the presumption set forth in
          subdivision (a) has been overcome, the court shall consider
          all of the following factors:

          (1) Whether the perpetrator of domestic violence has
              demonstrated that giving sole or joint physical or legal
              custody of a child to the perpetrator is in the best
              interest of the child.  In determining the best interest
              of the child, the preference for frequent and continuing
              contact with both parents, as set forth in subdivision (b)
              of Section 3020, or with the noncustodial parent, as set
              forth in paragraph (1) of subdivision (a) of Section 3040,
              may not be used to rebut the presumption, in whole or in
              part.

          (2) Whether 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.

          (3) Whether the perpetrator has successfully completed a
              program of alcohol or drug abuse counseling if the court
              determines that counseling is appropriate.

          (4) Whether the perpetrator has successfully completed a
              parenting class if the court determines the class to be
              appropriate.

          (5) Whether the perpetrator is on probation or parole, and
              whether he or she has complied with the terms and
              conditions of probation or parole.

          (6) Whether the perpetrator is restrained by a protective
              order or restraining order, and whether he or she has
              complied with its terms and conditions.

          (7) Whether the perpetrator of domestic violence has 
              committed any further acts of domestic violence.

      (c) For purposes of this section, a person has "perpetrated
          domestic violence" when he or she is found by the court to
          have intentionally or recklessly caused or attempted to
          cause bodily injury, or sexual assault, or to have placed
          a person in reasonable apprehension of imminent serious
          bodily injury to that person or to another, or to have
          engaged in any behavior involving, but not limited to,
          threatening, striking, harassing, destroying personal
          property or disturbing the peace of another, for which a
          court may issue an ex parte order pursuant to Section 6320 
          to protect the other party seeking custody of the child or
          to protect the child and the child's siblings.

      (d) (1) For purposes of this section, the requirement of a
              finding by the court shall be satisfied by, among other
              things, and not limited to, evidence that a party seeking
              custody has been convicted within the previous five years,
              after a trial or a plea of guilty or no contest, of any
              crime against the other party that comes within the
              definition of domestic violence contained in Section 6211
              and of abuse contained in Section 6203, including, but
              not limited to, a crime described in subdivision (e) of
              Section 243 of, or Section 261, 262, 273.5, 422, or 646.9
              of, the Penal Code.

          (2) The requirement of a finding by the court shall also be
              satisfied if any court, whether that court hears or has
              heard the child custody proceedings or not, has made a
              finding pursuant to subdivision (a) based on conduct
              occurring within the previous five years.

      (e) When a court makes a finding that a party has 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 shall
          consider any relevant, admissible evidence submitted by the
          parties.

      (f) In any custody or restraining order proceeding in which a
          party has alleged that the other party has perpetrated
          domestic violence in accordance with the terms of this
          section, the court shall inform the parties of the existence
          of this section and shall give them a copy of this section
          prior to any custody mediation in the case.