Celia S. v. Hugo H. - 3 Cal. App. 5th 655, 207 Cal. Rptr. 3d 756 (2016)

Rule:

Fam. Code, § 3044, establishes a rebuttable presumption that awarding physical or legal custody to a parent who has committed domestic violence is detrimental to a child's best interest. This presumption is mandatory and the trial court has no discretion in deciding whether to apply it. The court must apply the presumption in any situation in which a finding of domestic violence has been made. A court may not call into play the presumption contained in § 3044 only when the court believes it is appropriate. Because a restraining order under the Domestic Violence Prevention Act (DVPA) 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 DVPA restraining order necessarily triggers the presumption in § 3044. The § 3044 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. § 3044, subd. (a). The legal effect of the presumption is to shift the burden of persuasion on the best interest question to the parent who the court found committed domestic violence.

Facts:

Following a finding in a child custody case that respondent Hugo H. committed an act of domestic violence against appellant Celia S., the family court awarded the appellant sole legal and physical custody of the couple’s two children because respondent presented no evidence showing that an award of custody to him was in the children's best interest. The family court nevertheless awarded the respondent visitation consistent with the parties’ prior custody agreement, under which the children spent alternate weeks with each parent. Appellant challenged the decision, arguing that the trial court may not circumvent section 3044 by characterizing its order as merely an award of visitation.

Issue:

Could the trial court order that the children split their time with their parents, without any finding that such arrangement was in the children’s best interest? 

Answer:

No.

Conclusion:

The Court of Appeal reversed the order and remanded for further proceedings. For purposes of the presumption under Fam. Code, § 3044, ordering the children to split their time with the parents on alternating weeks was necessarily an award of joint physical custody, regardless of the visitation label attached to the arrangement. Therefore, a finding that the award was in the children's best interest was required before entering that order. The court also held that the appeal was not rendered moot by the fact that a one-year domestic violence restraining order had expired.