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A Family Law Court Abuses its Discretion in Granting a Child Custody Order if there is No Reasonable Basis on Which it Could Conclude that its Decision Advanced the Best Interests of the Children

Celia S. (“Mother”) and Hugo H. (“Father”) maintained a romantic relationship for many years, but never married. The couple had two children together. According to Mother, several acts of domestic violence led to their separation. In February 2014, the parties stipulated to joint legal and physical child custody of their children with a “50/50 timeshare” under which the children alternated weeks with each parent. In January 2015, an incident occurred in which Father pulled Mother by the hair and punched her in the stomach. After the altercation, Mother called the police. The police arrested Father after their son, Christian, told the police that he saw Father hit Mother. The police issued an emergency protective order requiring Father to stay away from Mother and the children. The next day, Mother filed a petition for a Domestic Violence Restraining Order (“DVRO”) against Father, and for an order awarding her sole legal and physical child custody of the children. The family law court issued a temporary restraining order. At the evidentiary hearing on the order, there were many conflicts in the testimony between Father and Mother. However, the family law court ultimately concluded that Mother’s version of the events was more credible, and issued a Domestic Violence Prevention Act DVRO against Father. The family law court also awarded Mother sole legal and physical child custody, but granted Father visitation. The family law court determined to leave the current child custody arrangement in place, which called for a 50/50 timeshare. Mother’s family law lawyer then appealed the 50/50 child custody timeshare award. Father did not appeal the DVRO.

Family Code section 3044 establishes a presumption that awarding physical or legal child custody to a parent who has committed domestic violence within the previous five years is detrimental to a child’s best interest. This presumption must be applied “in any situation in which a finding of domestic violence has been made.” The presumption is rebuttable and “may be overcome by a preponderance of the evidence showing that it is in the child’s best interest to grant joint or sole custody to the offending parent.” The legal effect of the presumption is to shift the burden of persuasion to the parent who the court found committed domestic violence.

On appeal, Mother’s family law attorney contended that the family law court erred by leaving the parties’ 50/50 child custody timeshare arrangement in place, despite finding that Father had committed domestic violence against her. According to Mother’s family law lawyer, section 3044 prohibited the court’s 50/50 timeshare arrangement because it effectively awarded joint physical child custody without requiring Father to present evidence showing the arrangement is in the children’s best interest. The Court of Appeal found that the family law court abused its discretion by awarding joint physical child custody without requiring Father to rebut the section 3044 presumption. The Court of Appeal reasoned that Father did not attempt to make a showing that an award of child custody to him was in the children’s best interest, and the family law court impliedly found that he failed to do so when it acknowledged that section 3044 required the family law court to award Mother sole legal and physical child custody. The family law court seemed to believe that it complied with section 3044 by awarding Mother sole legal and physical child custody of the children, and describing the children’s time with Father as “visitation.” But in determining the true nature of the court’s order, the legal effect of the order under the Domestic Violence Prevention Act must be considered, and not the label the family law court attached to it. Father’s family law lawyer does not explain how maintaining the previous arrangement, which provided for joint physical child custody with a 50/50 timeshare, could be characterized as anything other than an award of joint physical child custody. Thus, agreeing with Mother’s family law attorney, the Court of Appeal held that the family law court abused its discretion by failing to properly apply section 3044‘s rebuttable presumption and awarding Father joint physical child custody without evidence showing that child custody arrangement was in the children’s best interest. Thus, the order issued by the family law court was reversed, and the case remanded for further proceedings.

Celia S. v. Hugo H. (2016) 3 Cal. App. 5th 655