California Court of Appeal Reverses Custody Order for Failure to Apply Family Code Section 3044

Decker Law Obtains Writ Relief in Domestic Violence Custody Case

The California Court of Appeal recently granted a petition for writ of mandate after a family court awarded sole legal and physical custody to a parent who was subject to the domestic violence presumption contained in Family Code section 3044.

Decker Law represented the petitioner and successfully obtained extraordinary relief requiring the trial court to vacate its custody orders. The Court of Appeal held that the family court could not disregard the mandatory requirements of Family Code section 3044, even under what it viewed as unusual or emergency circumstances.

Background of the Case

The parties shared a daughter and had been involved in lengthy custody litigation.

Several years earlier, the family court issued a domestic violence restraining order against the father after finding he was the primary aggressor. The order protected the mother, the child, and other family members. The restraining order remained in effect at the time of the custody proceedings.

Because a finding of domestic violence had been made within the preceding five years, Family Code section 3044 created a rebuttable presumption that awarding custody to the father would be detrimental to the child.

The dispute escalated after concerns arose regarding the child's whereabouts and the mother's failure to appear at certain hearings. Faced with what it characterized as "special circumstances," the family court awarded the father sole legal and physical custody while stating that the issue of whether he had rebutted the section 3044 presumption would be addressed later.

The mother sought immediate review in the Court of Appeal through a petition for writ of mandate.

The Legal Issues

The central question was straightforward:

Can a family court award custody to a parent subject to Family Code section 3044 without first making the findings required by the statute?

The Court of Appeal answered no.

The Court of Appeal's Decision

The Court of Appeal granted the petition.

The court emphasized that Family Code section 3044 creates a mandatory rebuttable presumption against awarding custody to a parent who has perpetrated domestic violence within the previous five years. The statute requires courts to evaluate specific factors and make express findings before determining that the presumption has been overcome.

Among other things, courts must consider whether the offending parent has complied with restraining orders, completed an approved batterer's intervention program, and satisfied other statutory requirements designed to protect the child and the victim of domestic violence. The court must then make specific findings on the record addressing each required factor.

The Court of Appeal found that the family court failed to comply with these requirements.

The trial court expressly acknowledged that it lacked evidence concerning certain statutory factors, including whether the father had completed a batterer's intervention program. It also failed to make the specific findings required by Family Code section 3044. Instead, it attempted to create an interim exception based upon concerns regarding the child's whereabouts and the mother's absence from court.

The Court of Appeal held that no such exception exists.

No "Special Circumstances" Exception to Family Code Section 3044

A significant aspect of the decision is the Court of Appeal's rejection of the trial court's attempt to create a temporary exception to the domestic violence presumption.

The family court reasoned that awarding custody to the father would assist efforts to locate the child and address immediate concerns regarding the child's welfare. However, the Court of Appeal concluded that neither the statute nor existing case law permits courts to disregard Family Code section 3044 based upon perceived emergency circumstances.

While acknowledging that the trial court's concerns were understandable, the Court of Appeal explained that the Legislature established specific requirements that must be satisfied before custody may be awarded to a parent who has committed domestic violence. Courts are not free to ignore those requirements, even temporarily.

Because the father had not rebutted the presumption in the manner required by statute, the custody orders could not stand.

Why This Decision Matters

This decision may be particularly relevant in cases involving:

• Family Code section 3044;

• Child custody disputes involving domestic violence;

• Domestic violence restraining orders;

• Requests to modify custody orders;

• Batterer's intervention program requirements;

• Emergency custody proceedings; and

• Petitions for writ of mandate.

The case serves as an important reminder that courts cannot award custody to a parent subject to the section 3044 presumption unless the statutory requirements have been satisfied and the required findings have been made.

Contact Decker Law

Decker Law represents clients throughout California in family law appeals, writ proceedings, child custody disputes, domestic violence restraining order matters, and other complex appellate proceedings. If you are considering an appeal or writ petition involving a custody ruling or Family Code section 3044 issue, contact Decker Law to discuss your appellate options.