Opinion
F082142
10-19-2021
M.F., Appellant, v. L. V., Respondent.
Castro Law Group and Mark J. Castro for Appellant.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Fresno County Super. Ct. No. 17CEFL06897. Lisa M. Gamoian, Judge.
Castro Law Group and Mark J. Castro for Appellant.
No appearance for Respondent.
OPINION
LEVY, J.
In this child custody case relating to the parties' infant son, J.F.V., the trial court granted to the child's father, M.F. (Father), sole legal and physical custody after finding that the child's mother, L.V. (Mother), committed domestic violence against Father, but the trial court nonetheless proceeded to grant to Mother substantial visitation time of three full days each week. Father appeals from the custody order on the ground that the trial court failed to comply with Family Code section 3044. Section 3044 creates a rebuttable presumption that an award of sole or joint physical custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child. (§ 3044, subd. (a).) The presumption may be overcome by a preponderance of the evidence. (Ibid.) Father contends the trial court erred by awarding de facto joint physical custody to Mother through the grant of extensive visitation time each week, even though Mother failed to present any evidence to rebut the statutory presumption. We agree with Father's contention and accordingly reverse the portion of the custody order relating to Mother's visitation. The matter is remanded to the trial court for further proceedings to reassess Mother's visitation in light of the presumption set forth in section 3044 and the definition of what constitutes joint physical custody under the Family Code and case law, as more fully delineated in this opinion.
Unless otherwise indicated, all further statutory references are to the Family Code. We note that no respondent's brief was filed herein. We shall proceed to consider the appeal based on Father's opening brief as appellant under the record provided to us. (Cal. Rules of Court, rule 8.220(a)(2).)
FACTS AND PROCEDURAL HISTORY
Mother and Father were in a romantic relationship, off and on, from approximately January 2017 to June 2020. During most of that time, they lived with each other at an apartment in Fresno, along with Mother's daughter, A.V. In 2017, Mother and Father had a child together, a son, J.F.V. Under a court order entered in 2019, Mother and Father shared joint legal and physical custody of J.F.V., albeit most of the time they were not concerned with that order because they were living together.
Domestic Violence Restraining Order
On June 23, 2020, Father filed an ex parte request in the trial court to obtain a temporary restraining order against Mother pending a noticed hearing to decide whether a domestic violence restraining order should be issued against Mother. It was asserted in Father's supporting declarations that Mother had punched him in the face multiple times on more than one occasion. A temporary restraining order was granted until the time of the noticed hearing, which was set for August 20, 2020. On August 20, 2020, the trial court granted Mother's request for a continuance of the hearing. In granting the continuance, the trial court informed Mother that "[i]f after hearing the evidence in this case I do find that [Father] has met his burden of proof and I issue a domestic violence restraining order against you, there is a presumption in the law. It's Family Code section 3044 and we will e-mail you a copy of that code section. That code section does state that you cannot have either legal or physical custody of your child. Okay. Because of that very serious consequence, the law does allow you a one-time continuance of today's hearing so you can properly prepare your own testimony, any evidence you want the Court to see, or any other witnesses you may want the Court to hear from on your behalf." The trial court continued the hearing date to September 10, 2020.
After one further continuance, the hearing on Father's request for a domestic violence restraining order was held on September 22, 2020. The trial court heard witness testimony and other evidence. Following the presentation of evidence and closing arguments by the parties, the trial court found that Father had proven by a preponderance of the evidence that Mother committed domestic violence against him. The trial court found Father's testimony to be credible that, on June 18 and June 19, 2020, Mother repeatedly struck him in the face with a closed fist. Therefore, the trial court issued a domestic violence restraining order against Mother to remain in effect for a period of five years. The trial court noted that the order was for protection of Father; the child was not named as a protected party under the order.
Temporary Custody Order
Once it was determined by the trial court that Mother had committed domestic violence against Father, the trial court issued a temporary custody order pending a subsequent hearing on October 30, 2020 to decide custody. Under the temporary order, Father was to have sole legal and sole physical custody of the minor child, and Mother would have visitation "commencing on Sunday at 5 p.m. and concluding on Tuesday at 5 p.m."
October 30, 2020 Custody Hearing and Order
Following mediation, the parties returned to court on October 30, 2020, for the hearing to determine custody and visitation of their child, J.F.V. Because of the prior finding of domestic violence against Mother, the trial court announced that its intention was to grant sole legal and physical custody to Father based on section 3044. The trial court then inquired as to the parties' positions on visitation. Mother noted she has had visitation Sunday to Tuesday and requested an additional day each week of visitation, which she said would make it more "fair," or approximately "50/50." Father informed the trial court he wanted the visitation to remain unchanged from the temporary custody order (i.e., Sunday at 5:00 p.m. to Tuesday at 5:00 p.m.) and objected under section 3044 to Mother's request for an additional day, since such a significant sharing of time would be tantamount to joint physical custody.
After further discussion and argument, the trial court issued its final order to (i) grant Father sole legal and sole physical custody of the child; and (ii) grant Mother visitation of the child from Sunday at 5:00 p.m. to Wednesday at 5:00 p.m. In addition, the trial court ordered Mother to enroll in and to complete a 52-week "Batterer's Intervention Program," and also ordered her to enroll in and complete a parenting program. The trial court's order stated that a failure to complete the programs "may be taken into consideration by the Court in future custody and visitation matters in this case."
Father timely filed a notice of appeal from the trial court's October 30, 2020 custody order.
DISCUSSION
I. Standard of Review and Overview of Section 3044
"We review custody and visitation orders for an abuse of discretion, and [we] apply the substantial evidence standard to the court's factual findings." (In re Marriage of Fajota (2014) 230 Cal.App.4th 1487, 1497; see In re Marriage of Burgess (1996) 13 Cal.4th 25, 32.) A court abuses its discretion in making a child custody order if there is no reasonable basis on which it could conclude that its decision advanced the best interests of the child, or if it applies improper criteria or makes incorrect legal assumptions. (In re Marriage of Fajota, supra, at p. 1497.)
Where domestic violence has been found by the trial court, the guiding principle in making any custody or visitation order remains "that the order must be in the child's best interest. (See §§ 3011, 3020, 3040.)" (Celia S. v. Hugo H. (2016) 3 Cal.App.5th 655, 661.) In a statement of legislative policy relating to the best interest of the child standard, section 3020 declares: "The Legislature finds and declares that it is the public policy of this state to ensure that the health, safety, and welfare of children shall be the court's primary concern in determining the best interests of children when making any orders regarding the physical or legal custody or visitation of children. The Legislature further finds and declares that children have the right to be safe and free from abuse, and that the perpetration of child abuse or domestic violence in a household where a child resides is detrimental to the health, safety, and welfare of the child." (§ 3020, subd. (a).)
Subdivision (b) of section 3020 declares the further legislative policy of ensuring that children have frequent and continuing contact with both parents. However, we note that under section 3044, subdivision (b)(1), "the preference for frequent and continuing contact with both parents … may not be used to rebut the presumption" under section 3044.
To further the goal of protecting the health, safety and welfare of children, section 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. (Celia S. v. Hugo H., supra, 3 Cal.App.5th at p. 661.) In that regard, section 3044, subdivision (a), provides as follows: "Upon a finding by the court that a party seeking custody of a child has perpetrated domestic violence within the previous five years against the other party seeking custody of the child …, 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 Sections 3011 and 3020. This presumption may only be rebutted by a preponderance of the evidence." (§ 3044, subd. (a).)
In a custody proceeding in which a party has alleged that the other party has perpetrated domestic violence, the court is required to inform the parties of the existence of section 3044 and give them a copy of this section prior to custody mediation in the case. (§ 3044, subd. (h).) The trial court did so here.
Subdivision (b) of section 3044 sets forth the criteria and factors that must be evaluated by the trial court before determining the presumption is overcome. To make such a determination, the trial court must find "[t]he perpetrator of domestic violence has demonstrated that giving sole or joint physical or legal custody of a child to the perpetrator is in the best interest of the child pursuant to Sections 3011 and 3020." (§ 3044, subd. (b)(1).) In addition, the trial court must also consider six other factors and be satisfied that, on balance, they satisfy the legislative policy of protecting the health, safety, and welfare (i.e., the best interests) of the child. (§ 3044, subd. (b).) The additional statutory factors to be considered are the following: "(A) The perpetrator has successfully completed a batterer's treatment program that meets the criteria outlined in subdivision (c) of Section 1203.097 of the Penal Code. [¶] (B) The perpetrator has successfully completed a program of alcohol or drug abuse counseling, if the court determines that counseling is appropriate. [¶] (C) The perpetrator has successfully completed a parenting class, if the court determines the class to be appropriate. [¶] (D) The perpetrator is on probation or parole, and has or has not complied with the terms and conditions of probation or parole. [¶] (E) The perpetrator is restrained by a protective order or restraining order, and has or has not complied with its terms and conditions. [¶] (F) The perpetrator of domestic violence has committed further acts of domestic violence." (§ 3044, subd. (b)(2).)
As noted, the perpetrator cannot overcome the rebuttable presumption by referring to the preference for frequent and continuing contact with both parents. (§ 3044, subd. (b)(1).)
Subdivision (c) of section 3044 defines what it means to be a perpetrator of domestic violence for purposes of the statute. The definition includes, as occurred here, intentionally causing bodily injury by striking the other party seeking custody.
If domestic violence is found, the presumption of section 3044 is mandatory, and the trial court has no discretion in deciding whether to apply it. (Celia S. v. Hugo H., supra, 3 Cal.App.5th at p. 661.) The legal effect of the presumption is to shift the burden of persuasion on the question of the child's best interest to the parent who was found to have committed domestic violence. (Id. at p. 662; Christina L. v. Chauncey B. (2014) 229 Cal.App.4th 731, 736.) If the trial court determines a parent has overcome the section 3044 presumption, the court must state the reasons for its ruling in writing or on the record. (Celia S. v. Hugo H., supra, 3 Cal.App.5th at p. 662.) This means that the trial court must make specific mention of each of the seven factors set forth in section 3044 subdivision (b) when articulating reasons why the presumption has been overcome. (Jaime G. v. H.L. (2018) 25 Cal.App.5th 794, 805.) The requirement of specific findings has been confirmed by a recent amendment to section 3044, which states: "(1) It is the intent of the Legislature that this subdivision be interpreted consistently with the decision in Jaime G. v. H.L. [, supra, ] 25 Cal.App.5th 794, which requires the court, in determining that the presumption in subdivision (a) has been overcome, make specific findings on each of the factors in subdivision (b). [¶] (2) If the court determines that the presumption in subdivision (a) has been overcome, the court shall state its reasons in writing or on the record as to why paragraph (1) of subdivision (b) is satisfied and why the factors in paragraph (2) of subdivision (b), on balance, support the legislative findings in Section 3020." (§ 3044, subd. (f)(1), (2); see Stats. 2018, ch. 941, § 3 (Assem. Bill No. 2044), eff. Jan. 1, 2019.)
III. The Trial Court Erred by Effectively Awarding Joint Physical Custody Without Requiring Mother to Rebut the Section 3044 Presumption
According to Father's main argument on appeal, the trial court abused its discretion by awarding de facto joint physical custody to Mother, by means of the extensive visitation time granted to her, without first requiring Mother to rebut the section 3044 presumption and without also making necessary findings on that issue. As explained more fully below, we agree with Father's argument.
An important consideration in this regard is what constitutes joint physical custody under the family law. Under section 3004, joint physical custody exists where the child spends significant time with both parents. (§ 3004; In re Marriage of Biallas (1998) 65 Cal.App.4th 755, 760.) Although "[t]he Family Code does not define what amounts to 'significant' time with each parent for identifying a joint physical custody arrangement, … case law establishes some guidelines to help answer that question." (Celia S. v. Hugo H., supra, 3 Cal.App.5th at p. 663.) To determine whether joint physical custody exists, courts may consider the existing or de facto custody arrangement; that is, how much time each parent has with the children. (In re Marriage of Biallas, supra, at pp. 759-760.) "Where children 'shuttle[] back and forth between two parents' [citation] so that they spend nearly equal times with each parent … this amounts to joint physical custody." (In re Marriage of Lasich (2002) 99 Cal.App.4th 702, 715; accord, Celia S. v. Hugo H., supra, 3 Cal.App.5th at p. 658 ["roughly equal time with each parent" is a joint physical custody arrangement].) Accordingly, where one parent has four days and the other has three days each week, it is effectively a joint physical custody arrangement. (In re Marriage of Biallas, supra, at p. 760; accord, S.Y. v. Superior Court (2018) 29 Cal.App.5th 324, 332 [four days/three days division each week between parents was "a de facto joint custody order"].) In contrast, it has been held that where "a father has a child only 20 percent of the time, on alternate weekends and one or two nights a week, this amounts to sole physical custody for the mother with 'liberal visitation rights' for the father." (In re Marriage of Lasich, supra, 99 Cal.App.4th at p. 715.)
In Celia S. v. Hugo H., supra, 3 Cal.App.5th 655, where it was found that one spouse committed acts of domestic violence against the other, a visitation order which effectively created a joint custody arrangement was reversed on appeal due to the trial court's failure to adequately comply with section 3044. In that case, the trial court acknowledged that section 3044 was applicable because of the father's acts of domestic violence against the mother, and the trial court consequently granted sole legal and physical custody of the children to the mother; however, the trial court left intact an existing 50/50 timeshare arrangement by labeling the father's time as "visitation." (Celia S. v. Hugo H., at pp. 663-664.) The mother appealed, arguing the trial court failed to comply with section 3044. The Court of Appeal agreed with the mother and reversed, looking to the substance of the trial court's order, not the label the trial court attached to it: "The nature of any order must be determined by its legal effect, not its label. Based on the Family Code definition of 'joint physical custody' and the case law applying that definition, we conclude that an arrangement authorizing children to spend roughly equal time with each parent is a joint physical custody arrangement." (Celia S. v. Hugo H., at p. 658.) The Court of Appeal held that "the trial court's order effectively awarded [the father] joint physical custody of the children … even though the court characterized the children's time with [the father] as 'visitation.'" (Id. at p. 663, italics added.) Moreover, because the trial court had not required the father to overcome the rebuttable presumption of section 3044, the de facto joint custody order constituted an abuse of discretion: "The trial court … abused its discretion by failing to properly apply section 3044's rebuttable presumption and awarding [the father] joint physical custody without evidence showing that custody arrangement was in the children's best interest." (Celia S. v. Hugo H., at p. 664.)
In the present case, at the custody hearing on October 30, 2020, Mother made no attempt to overcome the presumption of section 3044. Nor did the trial court make any of the special findings that would be required to determine the presumption had been rebutted by Mother. To the contrary, the trial court made clear that, based on its prior finding Mother had perpetrated domestic violence, section 3044 applied and necessitated that Father be awarded sole physical and legal custody. That much of the trial court's order was unquestionably correct. However, as pointed out in Father's appeal, the trial court's order had a fatal flaw comparable to what occurred in Celia S. v. Hugo H., supra-namely, so much visitation time was provided to Mother that the order was tantamount to granting joint physical custody. As we discussed hereinabove, cases applying the definition of joint physical custody have recognized that an order granting three days to one parent and four days to the other parent each week is effectively a joint physical custody arrangement. (In re Marriage of Biallas, supra, 65 Cal.App.4th at p. 760; S.Y. v. Superior Court, supra, 29 Cal.App.5th at p. 332 [four days/three days division each week between parents was "a de facto joint custody order"].) Thus, despite the fact that section 3044 bars an award of joint physical custody unless the presumption is first overcome, the trial court effectively gave such custody to Mother without requiring her to overcome the presumption. In so doing, the trial court erred.
IV. Summary of Outcome and Disposition
To summarize our analysis and conclusions, section 3044 establishes 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." (§ 3044, subd. (a).) A consequence of this rebuttable presumption is that a trial court may not give joint physical custody to a parent who commits domestic violence against the other parent, unless the offending parent has established by a preponderance of the evidence that an award of custody to that parent is in the child's best interest. (Celia S. v. Hugo H., supra, 3 Cal.App.5th at pp. 657-658.) As the present record clearly reflects, Mother made no evidentiary showing at all, much less by a preponderance of the evidence, to potentially overcome the presumption under section 3044. Accordingly, the trial court was precluded from giving Mother a time-share arrangement that effectively provided her joint physical custody of the parties' child. Since the trial court's order would have the parties' child spend three days with Mother and four days with Father each week (i.e., roughly an equivalent split of time), it was in effect an order of joint physical custody. (In re Marriage of Biallas, supra, 65 Cal.App.4th at p. 760; S.Y. v. Superior Court, supra, 29 Cal.App.5th at p. 332; see also Celia S. v. Hugo H., supra, at p. 664 [noting case law reflecting "joint physical custody exists when children spend four days each week with one parent and three days with other parent"].) That being so, the trial court's order was contrary to section 3044 and constituted an abuse of discretion. (Celia S. v. Hugo H., supra, 3 Cal.App.5th at pp. 662-664.)
We therefore reverse the portion of the trial court's order regarding visitation and remand the matter to the trial court for further proceedings. On remand, the trial court may award Mother visitation so long as it does not amount to a joint physical custody arrangement, as we have explained herein. In essence, our remand allows the trial court to reassess the amount of visitation time in a manner consistent with this opinion. Of course, at any appropriate time, the trial court may also hear a request or petition from
We note that under the prior (i.e., temporary) custody order, Mother had two full days per week of visitation (i.e., Sunday at 5:00 p.m. to Tuesday at 5:00 p.m.). Father did not object to continuing the terms of that order and, in fact, requested the trial court continue its terms. Therefore, two days per week of visitation is one of the options for the trial court to consider on remand. In that regard, we note that although there is case law regarding three days per week (a three days/four days split) as noted herein, we have not been informed of any reason to believe two days per week would be tantamount to joint physical custody.
Mother to modify custody subject to section 3044's presumption, or to seek to overcome the presumption by a preponderance of evidence.
DISPOSITION
The portion of the trial court's custody order relating to visitation is reversed, and the matter is remanded to the trial court for further proceedings consistent with this opinion.
WE CONCUR: HILL, P.J. DETJEN, J.