What is the Meaning of Family Law Code 3044?
In California, a parent who has perpetrated domestic violence against their spouse, partner, or cohabitant within the last five years is deemed to be incapable of sharing legal or physical custody of their children. This is called the “3044 presumptions.” It’s important to understand this because it can have significant ramifications on your child custody/visitation case if you’re facing a DV conviction or decision against you.
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It’s Important to Know About the 3044 Presumption.
The California legislature enacted Family Code section 3044 in order to ensure that courts consider domestic violence when determining the best interests of a child in custody proceedings. The statute outlines six narrowly defined factors that the court must consider, and one broad factor that requires substantial judicial discretion.
Specifically, the court must consider whether the domestic violence is of a type that would harm the child in any way and if so, what that harm would be. In addition, the court must also take into consideration other relevant factors that the state legislature outlined in the statute.
It is the responsibility of a judge to make this determination based on the evidence. However, if a parent who has been found to have committed DV against their spouse or cohabitant can provide the court with strong and compelling evidence that overcoming this rebuttable presumption would not be harmful to the child, then the judge may consider awarding physical or legal custody of the child to that person.
If you’re a victim of DV, it is important to seek the help of an attorney as soon as possible. The lawyer can file a motion with the court to prevent the court from making a finding of DV and then issuing a restraining order against you.
You can also document any instances of DV, including physical abuse, that you have experienced in the past to help strengthen your position. It is especially important to have documentation of DV when you are seeking modification of your parenting time and/or custody.
Moreover, if you believe your ex-spouse is violating the court order, you should document that violation as well. Even a small shove in the heat of the moment or a series of angry text messages can have serious ramifications on your case.
It is important to hire a lawyer if you are in the middle of a divorce and you believe that your ex-spouse has been abusing you or if they have threatened you with DV. This can have long-lasting ramifications for your future, so it is important to take these matters seriously.
The Law Offices of Justin Kirk Tabayoyon can provide you with legal representation if you are dealing with issues related to domestic violence and child custody/visitation. Contact us today to learn more!
Does the 3044 Presumption Apply in Move-Away Cases?
In a move-away case, the father may still be able to overcome the 3044 presumptions as long as he can prove by a “preponderance of the evidence” that relocation would not be detrimental to his child. In other words, he must be able to show that the move away from his current home will not result in a negative impact on his child’s health or safety.