California law provides a presumption that a parent who has committed domestic violence in the last five years should not be permitted to have sole or joint custody over his or her children. Although the “section 3044” presumption can be overcome, it’s up to the parent who has committed domestic violence to rebut the presumption with sufficient evidence. A recent decision by California’s Fourth District Court of Appeals is an example of how the presumption works.
Husband and Wife were married in 2005 and had three children before Wife filed for divorce five years later. Wife claimed that Husband physically abused her over the course of the marriage, including while she was pregnant with the couple’s second child. Among other actions, she said Husband regularly pushed her and threw things at her and that he also destroyed many of her belongings. Wife obtained a restraining order against Husband after what the Court called a “particularly violent episode.” Husband was arrested less than a year later, stemming from an incident in which he threw Wife into a wall.
The parties reconciled in 2012, but it didn’t last. Husband allegedly became abusive again after Wife confronted him about being unfaithful, including by throwing an iPhone, iPad, and burrito at her on different occasions. He also allegedly struck her on the head while she was driving the family car. Wife obtained a temporary domestic violence restraining order after moving out of the family home with the kids. A judge also awarded her temporary sole physical and legal custody over the children, pending a hearing on the matter. Wife later filed a second petition for divorce in 2013.
Although a trial court found that Husband had committed domestic violence against Wife, it denied her request for a permanent restraining order. The trial judge explained that he believed that Husband had “gotten the message” and wouldn’t continue to abuse Wife. A separate court then denied Wife’s request for permanent sole custody over the children. Noting that the other judge had denied the restraining order request, the second judge adopted a Family Court Services report recommending joint custody. A third judge later granted another permanent restraining order request, after a number of incidents of further abuse, but didn’t alter the custody arrangement.
Reversing the decision on appeal, the Fourth District said the lower courts wrongly discarded the presumption against custody for a parent who has committed domestic violence. “The clear terms of section 3044 require that a court apply a presumption that it is detrimental to the best interest of the child to award joint or sole physical or legal custody to a parent if the court has found that that parent has perpetrated any act of domestic violence against the other parent in the preceding five years,” the Court said. Nevertheless, it found “no indication in the record that the judges who made orders granting or affirming joint legal custody” actually applied the presumption. That was despite the fact that at least one of the judges found that Husband had committed domestic violence and that Husband admitted to many of the actions of which he was accused.
As a result, the Court remanded the case for further proceedings applying the section 3044 presumption.
If you’re considering seeking a divorce in California, contact San Jose child custody lawyer John S. Yohanan. With more than 30 years of experience, Mr. Yohanan is an accomplished family law attorney who has helped a number of clients resolve child custody, visitation, and other issues on optimal terms. Call our office at (408) 297-0700 or contact us online to schedule a consultation.
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