Awarding Sole or Joint Physical or Legal Child Custody to a Parent Who has Committed Domestic Violence Against the Other Parent is Presumed to be Detrimental to the Best Interests of the Children

Elenita Fajota (“Mother”) and Romer Fajota (“Father”) were married in June 2005 and had three children together. The couple divorced in 2010, but later remarried in 2012. Mother claimed that Father perpetuated abuse against her and their children. In April 2013, Mother filed a request for a domestic violence restraining order under the Domestic Violence Prevention Act against Father. She also requested that the divorce court award her sole legal and physical child custody of the children. The divorce court awarded Mother a temporary restraining order (“TRO”), and temporary sole legal and physical child custody. Mother then filed a petition for dissolution of their marriage in May 2013. She also requested sole legal and physical child custody of the children, and filed a declaration to support her request detailing Father’s past acts of domestic violence. The divorce court found that Father had engaged in acts of domestic violence, but denied Mother’s request for a permanent restraining order. After the divorce court declined the permanent restraining order, the parties stipulated to a temporary child custody plan in which Father would have the children on alternate weekends and would have one midweek visit with them. In June 2013, the parties attended a Family Court Services (“FCS’) conference, and FCS issued a report that acknowledged the domestic violence against Mother. The FCS report also noted the reports of child abuse against Father. Despite the history of domestic violence perpetuated by Father, the FCS report recommended that the court grant the parties joint legal child custody.

At the divorce proceeding, Mother requested sole legal child custody on the ground that there had been domestic violence in the relationship, which Father admitted to, as noted in the FCS report. However, the divorce court adopted the FCS report, including the joint legal child custody provision. In August 2013, Mother’s divorce lawyer filed a notice of appeal. In September 2013, Mother’s divorce lawyer filed a second request for a permanent DVRO under the Domestic Violence Prevention Act in which she detailed the harassing conduct Father had engaged in since the hearing on the previous restraining order. Based on the information provided, the divorce court issued a TRO against Father. Father’s divorce lawyer filed a response to the request for a permanent DVRO. At the hearing on the DVRO, the divorce court granted the DVRO, but did not revisit the award of joint legal child custody, despite the issuance of the DVRO against Father based on his domestic violence. The divorce court then entered a judgment of dissolution. The judgment ordered that Mother would have sole physical child custody, with visitation for Father, and that the parties would share joint legal child custody of the children. Mother’s divorce lawyers then filed her second notice of appeal.

On appeal, Mother’s divorce attorney contended that the divorce court erred in failing to apply the rebuttable presumption set forth under Family Code section 3044, which provides that awarding sole or joint physical or legal child custody to a parent who has committed domestic violence against the other parent is detrimental to the best interests of the children. The clear terms of section 3044 require that a divorce court apply the presumption if the court has found that parent has perpetrated any act of domestic violence against the other parent in the preceding five years. The presumption is rebuttable, but the divorce court must apply the presumption in any situation in which a finding of domestic violence under the Domestic Violence Prevention Act has been made.

The Court of Appeal agreed with Mother’s divorce attorney and found that the divorce court abused its discretion in awarding Father joint legal custody without applying the section 3044 presumption, since it found that Father had previously engaged in acts of domestic violence against Mother. A finding by a divorce court that one parent has committed an act of domestic violence under the Domestic Violence Prevention Act against the other parent within the previous five years triggers the presumption mandated by section 3044. The Court of Appeal reasoned that the divorce court was under the misimpression that the presumption comes into play only upon the issuance of a new restraining order. Thus, the Court of Appeal reversed the divorce court’s judgment and remanded the matter to the divorce court to reassess the child custody order in light of the presumption.

In re Marriage of Fajota (2014) 230 Cal. App. 4th 1487