Form Pkt-008 - Domestic Violence - Restraining Order With Children Packet Page 20
ADVERTISEMENT
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23Family Code Section 3044
January 1, 2004
(a) Upon a finding by the court that a party seeking
(c) For purposes of this section, a person has “perpe-
custody of a child has perpetrated domestic violence
trated domestic violence” when he or she is found by
against the other party seeking custody of the child
the court to have intentionally or recklessly caused or
or against the child or the child’s siblings within the
attempted to cause bodily injury, or sexual assault, or
previous five years, there is a rebuttable presumption
to have placed a person in reasonable apprehension
that an award of sole or joint physical or legal custody
of imminent serious bodily injury to that person or to
of a child to a person who has perpetrated domestic
another, or to have engaged in any behavior involv-
violence is detrimental to the best interest of the child,
ing, but not limited to, threatening, striking, harassing,
pursuant to Section 3011. This presumption may only
destroying personal property or disturbing the peace of
be rebutted by a preponderance of the evidence.
another, for which a court may issue an ex parte order
pursuant to Section 6320 to protect the other party
(b) In determining whether the presumption set forth
seeking custody of the child or to protect the child and
in subdivision (a) has been overcome, the court shall
the child’s siblings.
consider all of the following factors:
(d) (1) For purposes of this section, the requirement of
a finding by the court shall be satisfied by, among
(1) Whether the perpetrator of domestic violence
other things, and not limited to, evidence that a party
has demonstrated that giving sole or joint physical
seeking custody has been convicted within the pre-
or legal custody of a child to the perpetrator is in
vious five years, after a trial or a plea of guilty or no
the best interest of the child. In determining the best
contest, of any crime against the other party that
interest of the child, the preference for frequent and
comes within the definition of domestic violence
continuing contact with both parents, as set forth
contained in Section 6211 and of abuse contained
in subdivision (b) of Section 3020, or with the non-
in Section 6203, including, but not limited to, a
custodial parent, as set forth in paragraph (1) of
crime described in subdivision (e) of Section 243
subdivision (a) of Section 3040, may not be used to
of, or Section 261, 262, 273.5, 422, or 646.9 of,
rebut the presumption, in whole or in part.
the Penal Code.
(2) Whether the perpetrator has successfully com-
(2) The requirement of a finding by the court shall
pleted a batterer’s treatment program that meets
also be satisfied if any court, whether that court
the criteria outlined in subdivision (c) of Section
hears or has heard the child custody proceedings
1203.097 of the Penal Code.
or not, has made a finding pursuant to subdivision
(3) Whether the perpetrator has successfully com-
(a) based on conduct occurring within the previous
pleted a program of alcohol or drug abuse coun-
five years.
seling if the court determines that counseling is
appropriate.
(e) When a court makes a finding that a party has per-
(4) Whether the perpetrator has successfully com-
petrated domestic violence, the court may not base its
pleted a parenting class if the court determines the
findings solely on conclusions reached by a child cus-
class to be appropriate.
tody evaluator or on the recommendation of the Family
Court Services staff, but shall consider any relevant,
(5) Whether the perpetrator is on probation or
admissible evidence submitted by the parties.
parole, and whether he or she has complied with
the terms and conditions of probation or parole.
(f) In any custody or restraining order proceeding in
(6) Whether the perpetrator is restrained by a pro-
which a party has alleged that the other party has per-
tective order or restraining order, and whether he or
petrated domestic violence in accordance with the
she has complied with its terms and conditions.
terms of this section, the court shall inform the parties
(7) Whether the perpetrator of domestic violence has
of the existence of this section and shall give them a
committed any further acts of domestic violence.
copy of this section prior to any custody mediation in
the case.
ADVERTISEMENT
0 votes
Related Articles
Related forms
Form Cv-502 - Confidential Address Information In Domestic Abuse, Child Abuse, Individual At Risk, And Harassment Temporary Restraining Order And Injunction Actions
Legal
Form Hud-5382 - Certification Of Domestic Violence, Dating Violence, Sexual Assault, Or Stalking, And Alternate Documentation
Legal
Form 5 - Order To Show Cause In A Special Proceeding With Temporary Restraining Order (t.r.o.)
Legal
Order To Show Cause In Special Proceeding With Temporary Restraining Order - New York Supreme Court
Legal
Order To Show Cause In Special Proceeding With Temporary Restraining Order - New York Supreme Court
Legal
Related Categories
Parent category: Legal