DV-100: Protection, Not a Custody Zinger

Statutes

• Cal. Fam. Code § 3044 — Domestic Violence; Rebuttable Presumption

  If the court finds that a party seeking custody perpetrated domestic violence within the previous five years against the other party seeking custody, the child or the child's siblings, or certain other listed persons, there is a rebuttable presumption that awarding that party sole or joint physical or legal custody is detrimental to the child's best interest, and the presumption may only be rebutted by a preponderance of the evidence. To overcome it the court shall find both that the perpetrator has shown custody to them is in the child's best interest, without relying on the frequent-and-continuing-contact preference, and that the listed factors on balance support the policies of § 3020: completion of a batterer's treatment program, alcohol or drug counseling and a parenting class (if appropriate), compliance with probation or parole and with any protective order, any further acts of domestic violence, and unlawful possession of a firearm or ammunition while restrained; the court must make specific findings on each factor and state its reasons in writing or on the record. The finding is satisfied by a conviction within the previous five years of a qualifying domestic-violence crime against the other party, or by another court's finding based on conduct within five years, and the court may not base its finding solely on a custody evaluator's conclusions or a Family Court Services recommendation. In an evidentiary hearing or trial where domestic violence is alleged, the court shall decide whether § 3044 applies before issuing a custody order, unless it finds a continuance is necessary, in which case it may issue a temporary custody order for a reasonable period that complies with §§ 3011 and 3020. '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 such as threatening, striking, harassing, destroying personal property, or disturbing the peace for which an ex parte order could issue under § 6320. When domestic violence is alleged, the court must tell the parties about § 3044 and give them a copy before custody mediation.

• Cal. Fam. Code §§ 3064, 3062 - Ex Parte Custody Orders; Immediate Harm; Hearing Within 20 Days

  The court shall refrain from granting or modifying a custody order ex parte unless there has been a showing of immediate harm to the child or immediate risk that the child will be removed from California. Immediate harm includes recent or continuing acts of domestic violence by a parent and recent or continuing sexual abuse of the child, and the court shall consider a parent's illegal access to firearms and ammunition (added effective January 1, 2025). When the court enters an ex parte temporary custody order it sets a hearing within 20 days and issues an order to show cause; if service fails despite good-faith efforts and the other party is believed to be hiding the child or avoiding the court, the hearing may be reset and the order extended up to 90 more days. Once served, either party may ask ex parte to advance the hearing or dissolve or modify the order. To extend the order up to 90 more days for failed service, the parent must show under penalty of perjury that the other party has the child and is avoiding the court's jurisdiction or concealing the child's whereabouts. If the responding party does not appear or respond in time, the ex parte temporary custody order may be extended as necessary until the case ends.