On January 1, 2026, two significant amendments to California family law took effect: changes to Family Code §3044 (the rebuttable presumption against custody for domestic violence perpetrators) and Family Code §6389 (firearm relinquishment under the Domestic Violence Prevention Act). The amendments reflect a clear legislative direction: protect children and protected parties from the combination of family violence and access to firearms.
Whether you are seeking protective orders or defending against allegations, understanding the new rules matters. Los Angeles family court judges are already applying them—and the standards are stricter than what existed before.
What Family Code §3044 Already Did
Before the 2026 amendments, Family Code §3044 created a rebuttable presumption that an award of sole or joint custody to a parent who has perpetrated domestic violence against the other parent or the children within the previous five years is detrimental to the child’s best interest. The presumption could be overcome only by specific findings supported by evidence.
What the 2026 Amendments Added
Under the amended Cal. Family Code §3044, courts can now consider violations of firearm restrictions when determining custody arrangements in cases involving domestic violence. This reinforces the presumption against granting custody to individuals who have committed domestic violence and violated firearm-related statutes.
Courts must now consider illegal firearm possession and associated risks when issuing ex parte custody orders. This includes assessing whether limiting or suspending visitation is necessary for the child’s safety. Parties requesting these protections must demonstrate immediate harm to the child or a risk of removal from the state.
What “Illegal Access” Means
“Illegal access” is defined as possession, purchase, or receipt of firearms or ammunition in violation of state or federal law, restraining orders, protective orders, injunctions, or probation or parole conditions. The list is broad. It includes:
- Possession in violation of an existing protective order
- Possession by a person prohibited under Penal Code §29800 (felony conviction)
- Possession by a person prohibited under Penal Code §29805 (specified misdemeanors)
- Possession in violation of probation or parole conditions
- Possession of an unregistered assault weapon
- Possession by a person under a Gun Violence Restraining Order
Family Code §6389 Updates
New, stricter guidelines govern exemptions for firearm relinquishment under the DVPA. Courts must determine, by a preponderance of the evidence, whether the responding party poses a risk to protected parties or the public. The default rule has long been that a party subject to a DVRO must relinquish firearms within 24 hours. The amendments narrow the path for exemptions and require an affirmative finding that the protected party and the public are not at risk.
Practical Implications for Custody Cases
Custody cases that intersect with firearm issues now require more documentation than ever:
- Evidence of past restraining orders, protective orders, or convictions that trigger firearm prohibitions
- Records showing the type and number of firearms believed to be in the home
- Confirmation of relinquishment to law enforcement, a licensed dealer, or a third-party storage
- Evidence of any subsequent purchase or attempt to purchase
- Statements from witnesses—including the child, where age-appropriate—about firearms in the home
The Automated Records Search Provision
Courts are required to consider the information obtained from these searches when deciding whether to issue a protective order or determining appropriate temporary custody and visitation orders. Any Information obtained that does not involve a conviction must not be considered by the court and should be destroyed, ensuring it does not become part of the public record in any civil proceeding. Under related provisions, courts now access automated records of firearm possession when evaluating restraining order requests, which means the evidence base for these decisions has expanded substantially.
Emergency (Ex Parte) Orders
Before 2026, ex parte custody orders required showing immediate harm or imminent removal from California. The amendments add illegal firearm access as a specific factor courts must weigh in determining immediate harm. A petitioner with credible evidence of illegal firearms in the household has a stronger basis for emergency relief than under prior law.
Defending Against Allegations
Not every allegation of illegal firearm access is well-founded. Effective defense generally requires:
- Documentation that all firearms are legally owned, registered, and stored
- Evidence that any prior orders requiring relinquishment were complied with
- Statements from law enforcement or licensed dealers confirming custody of firearms
- Independent evidence rebutting the petitioner’s claims
Frequently Asked Questions
Q: Does legal firearm ownership affect custody?
A: Lawful ownership alone does not trigger §3044. The analysis focuses on illegal possession or possession in violation of an order, plus evidence of risk to children.
Q: What if I owned firearms before any case began?
A: Lawful pre-existing ownership generally is not problematic, but you should ensure storage practices comply with California law and that any subsequent restraining order triggers immediate relinquishment.
Q: How quickly must firearms be relinquished after a DVRO?
A: 24 hours under Family Code §6389. Failure to comply is itself a violation that affects custody under §3044.
Suggested internal links:
- Link to: Domestic Violence Restraining Orders in Los Angeles Family Court
- Link to: Don’t Let How Custody Battles Escalate
- Link to: Areas of Practice → Custody
🛡 Firearm allegations in a custody case demand experienced counsel. Call Hermes Law Group at (213) 368-0000 today.