First Appellate District Division Four Appeal Court reverses custody order citing F.T. v. L.J. (2011) 194 Cal.App.4th 1, 28–29

The court of appeal effectively stated that the court applied the wrong legal standard when it changed the sole custody order to joint custody as the father had not demonstrated the rebuttable presumption required under CA family code section 3044.

“In effect, the trial court put the burden on Mother to show anew that Father had
committed domestic violence. In doing so, it appears to have ignored both the existing
restraining order and the legal effect of the judicial findings that were necessarily made in
connection with that order. (See S.M. v. E.P., supra, 184 Cal.App.4th at p. 1267.)
Nothing in the order even hints the court applied the presumption of section 3044, or
required Father to show by a preponderance of the evidence that it would not be
detrimental to grant him custody of the children. (See F.T. v. L.J. (2011) 194
Cal.App.4th 1, 28–29 [on remand, trial court should expressly find whether section 3044
presumption had been rebutted].) We shall therefore reverse the order and remand this
matter to allow the trial court to consider whether Father has met this burden.”


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