The Orange County Family Law Firm

Hire the Firm Lawyers Hire

A Finding of Domestic Abuse Sufficient to Support a DVPA Restraining Order Triggers the Rebuttable Presumption that an Award of Custody of a Child to a Person Who has Perpetuated Domestic Violence is Detrimental to the Best Interest of the Child

Mother and Father had two children born in 2000 and 2002. Mother and Father’s relationship was marred by domestic violence by Father, and by 2004, the couple no longer lived together. In 2004 and 2005, Mother obtained temporary restraining orders against Father for abuse. In 2006, the family law court granted another restraining order after Father went into Mother’s backyard, watched her through a window, and told her what he had seen. The same year, Mother was granted sole legal and physical child custody of the children. Father was granted visitation at Mother’s discretion. In 2008, the family law court issued a three-year domestic violence restraining order against Father, and granted him two hours of supervised visitation a month. In August 2011, the family law court entered an order awarding Mother sole legal and physical child custody of the children, with supervised visitation for Father. The same month, the family law court granted another temporary restraining order based on Mother’s statements that Father kept confronting her at work. At the hearing, the family law court granted a domestic Violence Protective Act Order for a period of two years.

In January 2013, Father’s family law lawyer petitioned the family law court to terminate the restraining order. The family law court denied the request, but modified the orders to allow brief and peaceful contact for visitation. Father’s family law lawyer also made a request to modify the child custody order. He alleged Mother had violated the restraining orders and made false accusations against him in order to separate him from his children. At the hearing on the motion, Father stated that he wanted his children to have the same visitation schedule as his other child from another relationship, so that the children could get to know each other. The family law court ultimately issued a written order. The family law court found Mother had raised issues regarding a history of abuse or neglect by Father, but that she had not produced sufficient evidence for the family law court to find in her favor. The family law court also found that the children would benefit from spending time with their half-sister. Thus, the family law court agreed with Father’s family law attorney’s position and ordered Mother and Father to share joint legal and physical child custody of the children, and established a schedule under which they would spend each weekend with Father. Mother’s family law lawyer appealed the order.

On appeal, Mother’s family law lawyer contended that the family law court erred by not applying the rebuttable presumption under Family Code section 3044, that Father should not have child custody because of his history of domestic violence, as shown by the 2011 restraining order issued pursuant to the Domestic Violence Prevention Act (“DVPA”). Section 3044 provides, “upon a finding by the court that a party seeking custody of a child has perpetrated domestic violence against the other party seeking custody of the child … within the previous five years, there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child, pursuant to Section 3011. This presumption may only be rebutted by a preponderance of the evidence.” A “person has ‘perpetrated domestic violence’ under the Domestic Violence Prevention Act when he or she is found by the court … to have engaged in any behavior involving, but not limited to, threatening, striking, harassing, destroying personal property or disturbing the peace of another, for which a court may issue an ex parte order pursuant to Section 6320 to protect the other party seeking child custody of the child.” Because a Domestic Violence Prevention Act restraining order must be based on a finding that the party being restrained committed one or more acts of domestic abuse, a finding of domestic abuse sufficient to support a Domestic Violence Prevention Act restraining order triggers the presumption in section 3044. This presumption changes the burden of persuasion, but “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 Court of Appeal found that the family law court was obligated to apply the presumption of section 3044 that granting child custody to Father would be detrimental to the children’s best interests. The 2011 restraining order was based on evidence that Father had recently confronted Mother at her place of work, that he had been physically violent to her in the past. Harassing or disturbing the peace of another is sufficient to constitute domestic violence for purposes of section 3044, and Father’s most recent actions occurred less than five years before the court order. Because there was no indication that the family law court applied the presumption of section 3044, or required Father to show by a preponderance of the evidence that it would not be detrimental to grant him child custody of the children, at Mother’s family law attorney’s request, the Court of Appeal reversed the family law court order, and remanded the matter to allow the family law court to consider whether Father’s family law lawyer had met his burden.

Christina L. v. Chauncey B. (2014) 229 Cal. App. 4th 731