Family Code §3044: Domestic Violence & Child Custody
When a Fresno County family court finds that a parent committed domestic violence, custody law changes overnight. Understand the presumption, what triggers it, and how it can be rebutted.
One statute — two sides. We represent parents on both.
Quick Answer
California Family Code §3044 creates a rebuttable presumption that awarding sole or joint physical or legal custody to a parent who has perpetrated domestic violence within the previous five years is detrimental to the best interest of the child. The finding can rest on a court determination or a qualifying criminal conviction — including Penal Code §273.5, §243(e), §422, or §646.9. The presumption may only be rebutted by a preponderance of the evidence, with the court weighing factors such as completion of a batterer's treatment program under Penal Code §1203.097, restraining-order compliance, and — under the version operative January 1, 2026 — unlawful firearm possession. Crown Law Firm handles §3044 issues from both directions: defending parents accused of domestic violence and protecting parents and children who have experienced it.
Family Code §3044 at a Glance
The complete decision flow — from the domestic violence finding through the rebuttal factors to the two possible outcomes.
What Triggers the §3044 Presumption
The presumption arises when the family court finds that a party seeking custody has perpetrated domestic violence within the previous five years against the other party, the child, the child's siblings, or certain persons with whom the party has a relationship. Two paths get there:
A Family Court Finding
No Conviction Required
Under Family Code §3044(c), "perpetrated domestic violence" means the court found the person intentionally or recklessly caused or attempted to cause bodily injury or sexual assault, placed someone in reasonable apprehension of imminent serious bodily injury, or engaged in conduct — threatening, striking, harassing, destroying personal property, disturbing the peace — for which a court may issue an ex parte order under Family Code §6320. A finding in a DVRO hearing is enough.
A Criminal Conviction
Trial or Plea Within 5 Years
Under Family Code §3044(d), a conviction within the previous five years — after trial or a guilty or no-contest plea — of a domestic violence crime against the other party satisfies the finding. Qualifying offenses include Penal Code §243(e) domestic battery, Penal Code §273.5 corporal injury, Penal Code §422 criminal threats, and Penal Code §646.9 stalking.
Why the criminal case controls the custody case: because a qualifying plea triggers the presumption automatically, the charge you plead to in a Fresno criminal courtroom can decide your custody case before the family court ever hears it. As a former Fresno County prosecutor who now defends domestic violence charges and handles child custody, attorney Yan E. Shrayberman evaluates every plea offer for its Family Code §3044 consequences — not just its criminal ones.
Rebutting the Presumption: What §3044(b) Requires
The presumption is rebuttable — by a preponderance of the evidence. The parent must first show that custody is in the child's best interest under Family Code §3011 and §3020, and the general policy favoring frequent and continuing contact with both parents cannot be used to make that showing. The court then weighs these statutory factors:
Batterer's Treatment Program
Successful completion of a batterer's treatment program meeting the criteria of Penal Code §1203.097(c) — the same 52-week program standard used in criminal domestic violence probation.
Alcohol or Drug Counseling
Successful completion of alcohol or drug abuse counseling, if the court determines counseling is appropriate.
Parenting Class
Successful completion of a parenting class, if the court determines the class is appropriate.
Probation or Parole Compliance
Whether the parent is on probation or parole, and whether they have complied with its terms and conditions.
Restraining Order Compliance
Whether the parent is restrained by a protective or restraining order, and whether they have complied with its terms and conditions.
Further Acts of Domestic Violence
Whether the parent has committed further acts of domestic violence.
Firearms (New — Operative 2026)
Whether the court has determined under Family Code §6322.5 that the parent is a restrained person in possession or control of a firearm or ammunition in violation of Family Code §6389, Code of Civil Procedure §527.9, or Penal Code §18120.
Specific findings are mandatory. Consistent with Jaime G. v. H.L. (2018) 25 Cal.App.5th 794, Family Code §3044(f) requires the court to make specific findings on each statutory factor and to state its reasons in writing or on the record when it determines the presumption has been overcome. A ruling that skips this analysis is vulnerable on appeal.
The Current Statute: What SB 899 Changed
The version of Family Code §3044 in effect today was enacted by SB 899 (Stats. 2024, ch. 544) and became operative January 1, 2026. If you are reading older guides, three changes matter:
Firearms Factor Added
Unlawful possession or control of a firearm or ammunition while restrained — determined under Family Code §6322.5 — is now an express factor weighing against rebuttal of the presumption.
Evaluator Limits Confirmed
Under Family Code §3044(e), a court may not base a domestic violence finding solely on a custody evaluator's conclusions or Family Court Services staff recommendations — it must consider the parties' admissible evidence.
Notice Before Mediation
Where domestic violence has been alleged, the court must inform both parties of Family Code §3044 and give them a copy of the statute before custody mediation — relevant in Fresno County, where Family Court Services mediation precedes contested custody hearings.
Primary sources: Family Code §3044 · Family Code §6211 · Penal Code §1203.097 · California Courts — Child Custody
Two Sides of Every §3044 Case
A domestic violence finding follows you into family court for five years. Defending the underlying accusation — in the criminal case or the DVRO hearing — is often the highest-leverage move for preserving custody.
- • Plea negotiation with §3044 consequences in view
- • DVRO hearing defense before findings are made
- • Building the rebuttal record: program completion, compliance
- • Custody advocacy where the presumption already applies
The presumption exists to keep children safe. Invoking it correctly — with admissible evidence and the findings the statute requires — is how it actually protects your child in a custody order.
- • Presenting the domestic violence finding the statute requires
- • Restraining order petitions that support the custody case
- • Holding the other side to the §3044(f) findings requirement
- • Custody and visitation structures that protect children
Meet Your Attorney
Yan E. Shrayberman
Criminal Defense & Family Law Attorney — Fresno, CA
Attorney Introduction Video
Video coming soon — hear directly from Yan Shrayberman about how he fights for his clients.
Every client deserves a fearless advocate who understands what's at stake. I've spent my career making sure the people of Fresno get exactly that — skilled, honest, aggressive representation.
Yan E. Shrayberman
Criminal Defense & Family Law Attorney
Licensed in CA · WA · FL
Read transcript
Yan E. Shrayberman: Hi, I'm Yan Shrayberman, founder of Crown Law Firm here in Fresno, California. I want to take a few minutes to introduce myself and tell you a little bit about how I approach representing clients — because choosing the right attorney may be the most important decision you make.
I've been a criminal defense and family law attorney for over ten years. I'm licensed in California, Washington, and Florida, and I focus my practice here in Fresno and throughout the Central Valley. I was named a Super Lawyer every year from 2020 through 2026, which I'm proud of — but what matters most to me is what happens in the courtroom and at the negotiating table for my clients.
On the criminal defense side, I handle everything from DUI charges and drug crimes to violent felonies, federal cases, and white-collar matters. Every case is different. A first-time DUI for a college student carries different stakes than a federal firearm charge for someone with a prior record. I take the time to understand exactly where you are, what the government's case looks like, and where the weaknesses are — then I build a strategy around that.
On the family law side, I represent clients in divorce, child custody, child support, spousal support, and property division cases. Family law cases are emotionally difficult. I've seen what happens when attorneys fan the flames just to generate more billing hours. That's not how I operate. I fight hard for your interests, but I also give you honest advice about when it makes sense to reach an agreement and when it makes sense to go to court.
One thing I want to be clear about: I'm the attorney who will actually be working on your case. You won't be handed off to a paralegal or a junior associate. When you call our office, you talk to me. When we go to court, I'm there with you.
If you or someone you love has been arrested, charged, or is facing a difficult family law situation, I encourage you to call us right away. The earlier we get involved, the more options we have. Our first consultation is free. You can reach me directly at (559) 779-2315.
I look forward to meeting you and finding out how Crown Law Firm can help protect what matters most to you.
Frequently Asked Questions About Family Code §3044
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Facing a §3044 Issue in Fresno County?
Whether you are accused of domestic violence or protecting a child from it, the statute's deadlines and findings requirements reward early, informed action.
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About Crown Law Firm
Attorney: Yan E. Shrayberman, Esq. — Licensed to practice in all California state courts and the U.S. District Court, Eastern District of California.
Office: 5151 North Palm Ave, Suite 100, Fresno, CA 93704
Phone: (559) 779-2315 — Available 24/7 for emergencies
Disclaimer: The information on this page is for general informational purposes only and does not constitute legal advice. No attorney-client relationship is formed by reading this content. Past results do not guarantee future outcomes. Every case is unique and must be evaluated on its own merits. If you need legal assistance, please contact Crown Law Firm for a free consultation.