California AB 1098: Implementing the New Domestic Violence Presumption in Child Custody Cases
California Family Code section 3044 has for decades established a rebuttable presumption that granting sole or joint physical or legal custody to a perpetrator of domestic violence is detrimental to the child's best interest. AB 1098, signed by the Governor in October 2024 and effective January 1, 2025, made targeted but significant amendments to the rebuttal framework — changes that family law practitioners must incorporate into both their counseling and their litigation approach.
Under the prior version of section 3044, an abusive parent could rebut the presumption by demonstrating, among other things, that awarding custody or visitation to that parent is in the best interest of the child and that the parent had completed a batterer's intervention program. Courts had discretion to weigh these factors flexibly, and some practitioners observed inconsistent application — judges sometimes treating completion of a batterer's program as essentially dispositive, regardless of whether the underlying behavior had actually changed.
AB 1098 amended the rebuttal framework in three key ways. First, it eliminated the prior provision allowing a parent to rebut the presumption in part by showing that visitation with the abusive parent is in the child's interest — the court must now evaluate custody and visitation separately, and the best-interest finding that can rebut the presumption is limited to the custody determination itself. Second, the law added a requirement that in assessing rebuttal, the court must expressly consider whether the abusive parent has demonstrated genuine recognition of the harm caused and meaningful change in behavior — not merely programmatic completion. Third, where the domestic violence involved a firearm, the amended statute requires that any rebuttal finding be accompanied by specific written findings addressing the child's safety.
The practical implications are already visible in early 2025 contested custody proceedings. Judicial officers have begun requiring written rebuttal findings with greater specificity, and litigants seeking to rebut the presumption are presenting evidence more focused on behavioral change — therapy records showing internalized accountability, third-party observations of changed behavior, and evidence about the parent's current living situation and relationships — rather than simply submitting a certificate of program completion.
For the protected parent, AB 1098 strengthens the procedural floor. Even where a batterer has completed intervention programming, courts are now expected to look behind the certificate to evaluate substantive change. Attorneys representing survivors should develop discovery and deposition strategies aimed at eliciting evidence about the abusive parent's current attitudes toward domestic violence, current intimate relationships, and any new incidents — even those that did not result in arrest or protective order.
One area of continuing uncertainty is the application of the amended statute to modifications of existing custody orders. Courts have generally treated section 3044 as applicable at modification proceedings where new domestic violence has occurred, but the question of whether the more demanding rebuttal standard applies retroactively to existing orders where rebuttal was previously established is not yet resolved by appellate authority. Practitioners should monitor Court of Appeal decisions from all districts throughout 2025 and 2026, as the first wave of appeals from AB 1098 proceedings should begin producing published opinions.