Avvo Rating Badge

Understanding the Criteria the Court Considers When Granting Custody in When a DVTRO Is Present

Brian Burkett

When there is an active restraining order enforced on one of the parties in a child custody case by the other party, child custody becomes a little more complicated. Family Code Section 3044 discusses which criteria are considered in determining how custody should be ordered in such situations. In child custody cases, one of the Court’s greatest concerns is the well-being and best interest of the child. When one party has committed domestic violence to the other party within a five-year period, the Court is hesitant to give that party any custody of the child due to the concern of domestic violence. However, the Court’s disposition to believe the domestic violence perpetrator would be detrimental to the child can be “rebutted”.

Ways to Rebut the Presumption

To rebut the presumption, there are a few different things the Court looks at. The most important factor is whether granting the perpetrator legal and physical custody would be in the child’s best interest. If giving the perpetrator the opportunity to see the child is beneficial to the child’s wellbeing, then the Court will use such facts in their decision.

While determining whether sole or joint legal and physical custody awarded to the perpetrator is beneficial to the child is the primary motivation of the Court, there are additional factors that must also be met. The first factor is whether the perpetrator has been to a batterer’s treatment program, which is a 52-week course. Completing such a program can be a serious step in rebutting the presumption, as the action shows the Court your intentions to grow. Another program you can do to rebut the presumption is a drug and alcohol abuse counseling, presuming the Court determines this is needed. If it is needed, it can help rebut the presumption of the active restraining order.

Parenting Course

Given it applies to your situation and the Court deems it necessary, another class you can take is a parenting course. Such courses indicate to the Court your desire to learn more about being a good parent, which the Court can look at to determine if contact with the perpetrator is beneficial to the child’s wellbeing and is in their best interest. Anger management courses and individual therapy for the perpetrator are other ways of demonstrating your willingness to change and better yourself, so these courses are great ways to help yourself in the eyes of the Court.

If the perpetrator is on parole, then complying with the probation is a good way to help rebut the presumption. If you violate probation, it will not help your case in this way. A straightforward way to help rebut the presumption is to not commit domestic violence. Committing more acts of domestic violence will seriously hurt your chances of the Court deeming it in the best interest of the child to grant you any type of physical or legal custody. Do not violate any firearm orders, such as not possessing firearms. If deemed that you do have a firearm that violates the domestic violence restraining order, then the Court will not look favorably on you.

In doing these various tasks above, someone with a domestic violence restraining order against them can help themselves in the eyes of the Court, making it more likely that they will be granted sole or joint legal or physical custody of their children. If deemed satisfactory by the Court, the presumption can be rebutted.


For more information, press the link below to read about Family Code Section 3044.



The Law Office of Brian Burkett is conveniently and centrally located in the Mission Valley area of San Diego, right off of the 163 and 8 freeways. Easy access and plenty of free parking. Convenient hours. Our office handles Family Law, Divorce, and Child Custody cases at all of the San Diego County Courthouses: Downtown, Vista, El Cajon, and Chula Vista.

San Diego, CA Office
591 Camino De La Reina

San Diego, CA 92108

Client Reviews

I know and have worked with Brian on a professional level for some time now. I can honestly say that he really cares about his clients. He is a genuine and honest...


Brian helped me in a child support case and also to attain guardianship of my grandson. In both cases, he was honest, persistent, and handled everything in a caring and...


I couldn’t have been happier with the service and price of Mr. Burkett. I would recommend him in a heartbeat.


Contact Us Now

Fill out the contact form or call us at (619) 250-2683 to schedule your free consultation.

Leave Us a Message