Published family law case, Fourth District Division One Appellate Court. Rebuttable Presumption against custody FC section 3044 applies to all restraining orders including Temporary Restraining Orders and acts of abuse even though no restraining order has been issued.

http://www.courts.ca.gov/opinions/documents/D064816.PDF

COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re the Marriage of ELENITA L. and
ROMER N. FAJOTA.
ELENITA L. FAJOTA,
Appellant,
v.
ROMER N. FAJOTA,
Respondent.
D064816 & D065118
(Super. Ct. Nos. D542803 & DV031757)
CONSOLIDATED APPEALS from a judgment of the Superior Court of San
Diego County, Robert S. Longstreth and Michael S. Groch, Judges. Reversed.
Reed, Smith, Anne M. Grignon, Margaret A. Grignon; San Diego Volunteer
Lawyer Program, Inc., Kris Lee Jacobs; Family Violence Appellate Project and Erin
Canfield Smith, for Appellant.
Romer N. Fajota, in pro. per., for Respondent.

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I.
INTRODUCTION
Elenita L. Fajota appeals from an order of the trial court granting her ex-husband,
Romer N. Fajota, joint legal custody of the couple’s three children. According to Elenita,
Romer admitted to engaging in acts of domestic violence, and the trial court found that
Romer had committed domestic violence against her. Elenita contends that in awarding
Romer joint legal custody, the trial court failed to apply the rebuttable presumption set
forth in Family Code1 section 3044. Section 3044 provides that it is not in a child’s best
interest to award joint or sole legal and/or physical custody to a parent who has been
found to have committed domestic violence against the other parent, the child, or the
child’s siblings.
We agree with Elenita that the trial court abused its discretion by failing to apply
the mandatory presumption set forth in section 3044 when it determined that the parties
would share joint legal custody of the children. We therefore reverse the custody order of
the trial court contained in the judgment of dissolution, and remand the matter to the trial
court to apply the mandatory presumption in determining the custody of the children.
II.
FACTUAL AND PROCEDURAL BACKGROUND
Elenita and Romer married in June 2005 and have three minor children together.
Beginning in 2006, Romer became physically violent with Elenita. Romer committed
1 Further statutory references are to the Family Code unless otherwise indicated.
3
acts of violence against Elenita even while she was pregnant with their second child.
Between 2006 and 2008, Romer would charge at Elenita, throw things at her, destroy her
belongings, and push her until she fell. Elenita obtained a restraining order against
Romer in 2007 after a particularly violent episode. Romer was arrested in 2008 after he
grabbed Elenita’s hair, jerked her head forward and back, and caused her head to hit a
wall.
By the end of 2008, Elenita had moved to Texas with the children and the couple
separated. Romer subsequently also moved to Texas. The parties divorced in Texas in
2010.
Elenita and Romer later reconciled. Elenita believed that Romer had changed.
Elenita, Romer, and the children moved back to California in the spring of 2012, and
Elenita and Romer remarried in October of that year. Three months later, Elenita learned
that Romer had been unfaithful. When Elenita told Romer that she wanted another
divorce, he again began engaging in physical violence and emotional abuse directed at
her. At various points in time, Romer called Elenita “stupid,” threw an iPad at her, threw
a burrito at her, and threw an iPhone at her. In February 2013, while Elenita was driving,
Romer became angry over something that Elenita had said. He struck her on the head
and ordered her to “shut up, and don’t talk about me like that ever again.”
In approximately March 2013, Elenita told Romer that their relationship was over.
However, they continued to live together in the family home. In April, Romer and
Elenita got into an argument. Romer ordered Elenita not to leave the house. When
4
Elenita picked up the car keys in preparation to leave, Romer came up behind Elenita and
grabbed her. Romer was yelling at her. He pinched her hand so hard that it began to
bleed. Two of the children were present during this incident, and one of the children
began to cry. When Elenita threatened to call the police, Romer stopped the abuse and
started being nice to her. Later that day, while Elenita was picking up two of the children
from school, Romer moved out of the house.
In addition to the abuse that Romer has perpetrated against her, Elenita has
witnessed Romer spanking the children “multiple times in a row” and has noticed the
children “ducking and covering” when in Romer’s presence.
Elenita filed a Request for Domestic Violence Restraining Order against Romer in
April 2013. She also requested that the court award her sole legal and physical custody
of the children. Elenita filed a declaration in support of her requests in which she
detailed Romer’s abuse from 2006 to the present. The court issued a temporary
restraining order, effective from April 29, 2013 to May 15, 2013, and awarded temporary
sole legal and physical custody to Elenita, pending a hearing on the request for a
permanent restraining order.
Romer filed a declaration in response to Elenita’s request for a domestic violence
restraining order in which he admitted to virtually all of the physical contact that Elenita
had detailed. However, he disputed the extent of the harm that he had caused by this
contact.
5
Elenita filed a petition for dissolution of the marriage on May 14, 2013. She
requested sole legal and physical custody of the children, and filed a declaration in
support of the request in which she detailed the history of Romer’s acts of domestic
violence.
The trial court, Judge McAdam,2 held a hearing on Elenita’s request for a
restraining order on May 15. Elenita testified about many of the incidents of abuse.
Romer also testified. He admitted that he had grabbed keys from Elenita during one of
the incidents, and also admitted to hitting her on the back of the head in the presence of
the children. When asked to rate the severity of that incident on a scale of one to five,
with “five being knock somebody out with a slap, one being sort of a love tap,” Romer
said that it was a “two or three just so she would stop bad mouthing [him].” Romer also
admitted that he had spanked the children.
At the conclusion of the hearing, the court found that Romer had engaged in acts
of domestic violence. However, the court denied Elenita’s request for a permanent
restraining order, explaining,
“[Elenita] clearly [has] a reason to request a permanent restraining
order, you know what I mean. No matter what Mr. Fajota may say
or think I think finally you’ve realized enough is enough, I’m not
going on with this. I’ve got the kids. Even though we’re still going to
be parents together, we’re not going to live together anymore.
[¶] . . . [¶] Is that right? [¶] . . . [¶] So I’m not going to grant you
the request for a permanent restraining order. It is not that I don’t
2 Although it is not generally our custom to identify judges by name, in order to
give proper context to the procedural history of this case we consider it helpful to identify
the several different judges who made the various rulings.
6
think that you’ve met the legal requirements, I have to say that, I’m
reluctant to say that, I hate to do that but I am saying it because I
don’t feel that there is any fear going forward with Mr. Fajota.
[¶] . . . [¶] It is not—a restraining order is not a penalty, it is not like
a criminal case. It is: do I think that that person needs protection
going forward. I honestly believe that he doesn’t [sic] for two
reasons: [¶] One, I think he’s going to listen to what I have to say.
[His attorney] is going to make sure he abides by it. [¶] The other
reason is his family is here, right. [¶] . . . [¶] You know, and
obviously if they have taken him in the house, that’s a big deal to me.
A lot of times I get parents that won’t let their kids come home, they
go, no way I’m not letting that kid in my house. They’re not going to
let him in the house. And I think his parents are going to make it
real clear to him.”
Later, the court said to Elenita, “He’s not going to hit you in the head to get your
attention anymore.”
Despite denying Elenita’s request for a permanent restraining order, the court
ordered that the dissolution action, which was pending in a different department, be
transferred to his department and consolidated with the domestic violence restraining
order action. The court awarded Elenita sole and exclusive use of the family residence,
and stated, in Romer’s presence, “What that means is that you [Elenita] have the sole and
exclusive use, no one gets to go in that house any more without your permission.” The
court then said, “We’ll work out some schedule to see the kids but if he violates and says,
I want to be able to go in and get this and that, it’s my house too, no it is not. Until a
further order of the court, it is yours [Elenita], that’s it. Period. [¶) . . . [¶] Do you think
he hears me say that? I think he does. And that is really important to me. I don’t want
you to be afraid of him.”
7
After the court declined to issue a permanent restraining order, the parties
stipulated to a temporary parenting plan pursuant to which Romer would have the
children on alternate weekends and would also have one mid-week afternoon visit with
them.
The following day, Judge McAdam issued an order entitled “Corrected Non-
Appearance Ex-Parte Minute Order,” which noted that on May 15, the court had entered
an order that affected the custody and visitation of the parties’ children, and had ordered
that the domestic violence and family law proceedings be consolidated. However,
because Judge McAdam had engaged in an ex parte communication with Elenita’s
attorney on a procedural matter, Judge McAdam reversed the portion of the May 15 order
regarding custody and visitation.3 Judge McAdam reconfirmed the order consolidating
the cases and concluded that further proceedings should be held in the family court before
Judge Groch.
The parties attended a Family Court Services (FCS) conference in June 2013.
FCS issued a parenting plan/mediation report (the FCS report) that noted the domestic
violence allegations. In addition, the FCS report acknowledged that Romer had admitted
3 The record does not include any written order issued by Judge McAdam on May
15 that “affected the custody and visitation of the parties’ three minor children,” and it is
not clear as to what Judge McAdam’s May 16 order is referring in stating that the court
made an order regarding the custody and visitation of the parties’ children. It is possible
that the court was referring to an apparent stipulation, read into the record by one of the
parties’ attorneys, regarding a temporary agreement concerning the parents’ division of
time with the children. However, the record does not clearly establish that this stipulation
was adopted as an order of the court.
8
to having engaged in domestic violence against Elenita. The FCS report further noted
that there had been three reports of child abuse against Romer to Child Welfare Services,
including one that month based on Romer’s admission that he had struck the children
with a belt. Despite the history of domestic violence perpetrated by Romer, the FCS
report recommended that the court grant the parties joint legal custody.
Judge Longstreth4 held a hearing on the dissolution proceedings on July 12, 2013.
Romer did not attend this hearing. While Elenita agreed with much of the FCS report,
she did not agree with the recommendation that the parties share joint legal custody.
Elenita requested sole legal custody on the ground that there had been domestic violence
in the relationship, “which [Romer] has admitted to, and it is also listed in the [FCS]
report.”
In response to Elenita’s request, the court stated, “That is kind of a strange order
for me to make when the most current request for a restraining order was denied.”
Elenita’s attorney responded, “I understand that, Your Honor. We didn’t agree with the
denial of the restraining order. There was [an] admission of all the abuse, including the
most recent abuse.” The court replied, “I understand that, and that’s your right to disagree
4 The minute order issued with respect to this hearing identifies the judge who
presided over the hearing as Judge Longstreth. The “Findings and Order After Hearing”
also identifies Judge Longstreth as having presided over the July 12 hearing, although the
document was signed by Judge Maureen F. Hallahan. However, the reporter’s transcript
for the July 12 proceeding identifies Judge Groch as presiding over the proceeding.
Given that the minute order and “Findings and Order After Hearing” both identify Judge
Longstreth as having presided over July 12 hearing, we will refer to Judge Longstreth as
the judge for that proceeding. The record does not disclose why this hearing may have
been held in Judge Longstreth’s department, rather than in Judge Groch’s department.
9
with that, but I think that I need to go with what the findings were, not with what you
wish they were.” The court continued, “So I will adopt the [FCS] report, including the
joint custody/legal custody provision. So the recommendations by the [FCS] counselor
in the June 21st, 2013 report, pages 6 though 10, paragraphs 1 through 9 with
subparagraphs, those are adopted as an order of the court.” The trial court issued its order
adopting the FCS report’s recommendations on August 7, 2013. Pursuant to the FCS
report that was adopted by the court, Romer was required to complete a six-week
parenting class by October 2013.
Elenita filed a timely notice of appeal from the court’s August 7, 2013 order.
Elenita filed a second request for a domestic violence restraining order against
Romer on September 23, 2013. In her request, Elenita detailed harassing conduct that
Romer had engaged in since the May 2013 hearing on her previous request for a
restraining order. According to Elenita’s declaration, sometime over the weekend of
September 20, 2013, without Elenita’s permission or knowledge, Romer entered the home
that the court had designated for Elenita’s sole and exclusive use. Romer had apparently
known that Elenita would be out of town that weekend. Romer removed various items
from the house, including Elenita’s bed frame, mattress, television stands, two couches, a
miniature refrigerator, a laptop computer, several DVDs, and other personal belongings.
After Elenita discovered what Romer had done and informed him that he was not
allowed to be in her home, he sent her a text message claiming that he had “[a]lready
10
cleared it with [the police department]. I’m good. So like your attorney told me with the
reunion, if you don’t like it, take me to court.”
Elenita called the police to file a report, and was informed that Romer had not
been escorted by a police officer when he entered her home. Elenita declared that she
“do[es] not feel safe in [her] home, knowing that [Romer] does not respect boundaries
and feels he can do whatever he wants to harm [her] without fear of consequences.”‘
According to Elenita’s declaration, Romer continued to berate Elenita, calling her
names like “slut,” ‘whore,” “bitch,” and “idiot,” and threatened to take the children away
from her. Romer also began demanding money or sexual favors from Elenita “in
exchange” for taking care of the children, even during his court-ordered parenting time.
The couple’s oldest child told Elenita that Romer had questioned him about
Elenita’s comings and goings, and that Romer had asked who takes care of the children
when Elenita is not at home. The child reported that if he did not respond, Romer would
spank him.
Early one morning in August 2013, at 3:00 a.m., Romer sent Elenita a text
message that caused her to believe that Romer had been watching her. In the text
message, Romer referred to a male friend who had visited Elenita the previous evening.
On another occasion, Romer questioned Elenita, through text messaging, as to whether
she was allowing other men to be around the children in her home. Romer warned
Elenita that if she had a ” ‘new dude’ ” watch the children, Romer would ” ‘put him in the
hospital.’ ”
11
The trial court issued a temporary restraining order requiring that Romer stay at
least 100 yards away from Elenita, her home, her place of work, and her vehicle, and set
a hearing on Elenita’s request for a permanent restraining order for October 15, 2013.
Prior to the hearing on Elenita’s request for a permanent restraining order, on
October 2, Elenita filed a request that the court enter a default against Romer in the
dissolution proceeding. The clerk of court entered a default against Romer that same day.
Romer filed a response to Elenita’s request for a domestic violence restraining
order. In his response, Romer conceded that he had entered Elenita’s home with three
friends. Romer maintained that he had entered Elenita’s bedroom in order to take things
that he claimed belonged to him. Romer contended that Elenita was seeking a restraining
order in “retaliation” for his having entered her home. He admitted that he had threatened
to take the children away from her, and acknowledged that he had “demanded money
from her” for watching the children. Romer also admitted that he had sent the 3:00 a.m.
text message. Romer disputed that he had ever “threatened” his son in order to obtain
information about Elenita. On the same day that Romer filed his response to Elenita’s
request for a restraining order, he also filed a request for an order to set aside the default
in the dissolution action. In addition, in the final paragraph of his pleading, Romer
requested that the court address child custody and visitation, asserting that he had been
watching the children 80 to 85 percent of the time.
At the hearing on October 15, at which Judge Groch presided, Romer again
admitted that he had entered Elenita’s home without her knowledge. He acknowledged
12
that he still had a key to the home. Judge Groch expressed surprised that Romer was
“back so soon doing these things,” after “Judge McAdam gave you a break and took you
at your word that that nonsense is over, and it looks like nonsense to me still.” Romer
responded, “I felt it was within my rights to still go back there and get my stuff, my
personal belongings . . . . [T]his restraining order is just to get back at me because I went
there to get my belongings.” The court replied, “It sounds like you keep doing things on
your terms instead of court terms and by agreement with [Elenita].” The court asked
Romer about the court-ordered parenting class that he was supposed to have completed.
Romer told the court that he was enrolled in a five-week parenting course. There was no
discussion regarding the fact that Romer was to have completed a six-week parenting
class by October 2013.
At the conclusion of the hearing, the court issued a one-year restraining order,
ordering that Romer stay at least 100 yards away from Elenita, except for “[b]rief and
peaceful contact” with Elenita and the children “as required for court-ordered visitation of
[the] children.” However, the court did not revisit the award of joint legal custody,
despite having issued a restraining order against Romer based on domestic violence. At
the hearing, the court told Romer, “We will give you a copy of Family Code section 3044
because there’s [sic] consequences of a restraining order. There’s a presumption against
custody, joint custody and visitation.” Although the court recognized the existence of the
presumption against joint custody, the court did not apply the presumption in making its
custody order. Instead, the court stated, “If you currently have joint, legal custody—at
13
this point, I’ll leave that in place.” The court then told Romer, “In order to overcome
[the] presumption of Family Code section 3044, you need to attend [a] high-conflict
parenting program, at least six sessions in length.” After some further discussion about
other classes, the court said, “I’m going to give you six months [of a] high-conflict coparenting
[class] because I want you to follow the prior orders and also be a condition of
overcoming that Family Code section 3044 presumption. So you need to do this to make
sure you’re eligible to have joint[] legal custody.”
After reiterating the details of the restraining order, the court entered a judgment
of dissolution, terminating the parties’ marriage. That judgment ordered that Elenita
would have sole physical custody, with visitation for Romer, and that the parties would
share joint legal custody of the children. The trial court’s judgment incorporated the
August 7, 2013 Findings and Order After Hearing, which also awarded Romer joint legal
custody.
Elenita filed a second notice of appeal, this one from the judgment of dissolution
entered on October 15, 2013. This court ordered the two pending appeals filed by Elenita
consolidated for briefing, argument, and decision.5 Only Elenita has filed a brief on
appeal.
5 Although Elenita filed two separate notices of appeal, and the appeals have been
consolidated in this court, Elenita has not established that the first notice of appeal was
taken from an appealable order. Specifically, it is not clear that the court’s August 7, 2013
order was a final order regarding custody. (See Smith v. Smith (2012) 208 Cal.App.4th
1074, 1089 [“[I]t is well settled that temporary custody orders are nonappealable”]; id. at
p. 1090 [” ‘A temporary custody order is interlocutory by definition, since it is made
14
III.
DISCUSSION
Elenita contends that the trial court erred in failing to apply the presumption set
forth in section 3044, which provides that awarding sole or joint physical or legal custody
to a parent who has committed domestic violence against the other parent is detrimental
to the best interests of a child.
We review custody and visitation orders for an abuse of discretion, and apply the
substantial evidence standard to the court’s factual findings. (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. (Ibid.) A court also abuses its discretion if it applies improper
criteria or makes incorrect legal assumptions. (Linder v. Thrifty Oil Co. (2000) 23
Cal.4th 429, 435-436.)
Elenita contends that the trial court erred in failing to properly apply the
presumption set forth in section 3044. In interpreting the meaning of a statute, courts
give the words “their usual and ordinary meaning.” (Esberg v. Union Oil Co. (2002) 28
pendente lite with the intent that it will be superseded by an award of custody after trial.
Fam. Code, §§ 3022, 3040, 3060– 3062 . . . .’ [Citation.]”].) Although the notice of
appeal from the August 7, 2013 order indicates that the appeal from that order was taken
from a “judgment after court trial,” in fact, the August 7, 2013 order was not a judgment
entered after a court trial, and Elenita has not explained how or why this order is
independently appealable. (See Cal. Rules of Court, rule 8.204(a)(2) [an appellant’s
opening brief must “(A) State the nature of the action, the relief sought in the trial court,
and the judgment or order appealed from; [¶] (B) State that the judgment appealed from
is final, or explain why the order appealed from is appealable . . . “].)
15
Cal.4th 262, 268 (Esberg).) When the statutory language is clear and unambiguous, “we
presume the Legislature meant what it said and the plain meaning of the statute governs.”
(People v. Snook (1997) 16 Cal.4th 1210, 1215.)
Section 3044, subdivision (a) provides:
“Upon a finding by the court that a party seeking custody of a child
has perpetrated domestic violence against the other party seeking
custody of the child or against the child or the child’s siblings within
the previous five years, 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 Section 3011. This presumption
may only be rebutted by a preponderance of the evidence.”
When considering whether the presumption provided in subdivision (a) of section
3044 has been rebutted, the trial court “shall” consider the following factors, as set forth
in subdivision (b) of that provision:
“(1) Whether the 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. In determining the best
interest of the child, the preference for frequent and continuing
contact with both parents, as set forth in subdivision (b) of Section
3020, or with the noncustodial parent, as set forth in paragraph (1) of
subdivision (a) of Section 3040, may not be used to rebut the
presumption, in whole or in part.
“(2) Whether 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;
“(3) Whether the perpetrator has successfully completed a program
of alcohol or drug abuse counseling if the court determines that
counseling is appropriate.
16
“(4) Whether the perpetrator has successfully completed a parenting
class if the court determines the class to be appropriate.
“(5) Whether the perpetrator is on probation or parole, and whether
he or she has complied with the terms and conditions of probation or
parole.
“(6) Whether the perpetrator is restrained by a protective order or
restraining order, and whether he or she has complied with its terms
and conditions.
“(7) Whether the perpetrator of domestic violence has committed
any further acts of 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 presumption is
rebuttable, but 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 section 3044 only when the court believes it is appropriate.” (S.M. v. E.P.
(2010) 184 Cal.App.4th 1249, 1267.)
There is no indication in the record that the judges who made orders granting or
affirming joint legal custody for Romer applied the mandatory presumption provided in
Family Code section 3044. At the first restraining order hearing on May 15, 2013,
Romer admitted that he had engaged in acts of domestic violence against Elenita, and the
court impliedly found that Romer had committed acts of domestic violence, telling
Elenita, “You clearly have a reason to request a permanent restraining order.” Despite
17
this, Judge McAdam declined to issue the requested restraining order, explaining that a
restraining order is not “a penalty” for prior bad acts, but instead, is intended to protect
someone going forward. Judge McAdam apparently believed that Romer “[was] going to
listen to what [the court has] to say,” which suggests that the court believed that Romer
would no longer engage in domestic violence directed toward Elenita. However, it is
clear that the court found that Romer had previously engaged in domestic violence
against Elenita.6 A finding that one parent has committed an act of domestic violence
against the other parent within the prior five years triggers the presumption mandated by
section 3044.
Judge McAdam ultimately did not enter an order regarding custody after that
hearing. Instead, Judge Longstreth addressed custody and visitation at a July 2013
hearing on Elenita’s petition for dissolution and entered a temporary order with respect to
those issues on August 7, 2013.7 Rather than apply section 3044’s presumption based on
Judge McAdam’s earlier finding of domestic violence, however, Judge Longstreth
appeared to focus on the fact that Judge McAdam had not issued the restraining order that
Elenita had requested at the May 15 hearing, stating: “That is kind of a strange order for
6 For example, the court told Elenita, “He’s not going to hit you in the head to get
your attention anymore” (italics added), demonstrating that the court found that Romer
had, in fact, struck Elenita in the head in the past.
7 Notwithstanding the fact that the August 7, 2013 order is not separately appealable
and that Elenita does not specifically seek reversal of that order, we discuss the merits of
that order because the trial court incorporated the August 7, 2013 order into the final
judgment, which is properly before us on appeal.
18
me to make [i.e., an order granting Elenita sole legal custody, as she was requesting]
when the most current request for a restraining order was denied.”
It appears that the court was under the misimpression that the presumption
contained in section 3044 comes into play only upon the issuance of a restraining order.
However, the presumption applies whenever there is a finding that one parent committed
an act of domestic violence against another parent, a child, or a child’s siblings within the
past five years. (§ 3044, subd. (a) [“Upon a finding by the court that a party seeking
custody of a child has perpetrated domestic violence against the other party seeking
custody of the child or against the child or the child’s siblings within the previous five
years . . . “].) Whether a restraining order is issued as a result of the domestic violence
thus has no bearing on the applicability of the statutory presumption to the issue of
custody.8 Judge Longstreth should therefore have applied the presumption, given that
8 The Domestic Violence Protection Act (DVPA) authorizes the trial court to issue a
restraining order “for the purpose of preventing a recurrence of domestic violence and
ensuring a period of separation of the persons involved, if an affidavit . . . shows, to the
satisfaction of the court, reasonable proof of a past act or acts of abuse.” (§§ 6300, 6220
[purpose of DVPA stated].) However, the fact that a trial court finds past abuse does not
require that the court issue a restraining order; rather, a court may decline to issue a
restraining order. Thus, the court will not necessarily issue a restraining order in every
case in which there has been a finding of a past act of domestic violence.
It is possible that Judge Longstreth mistakenly believed that Judge McAdam’s
denial of Elenita’s request for a permanent restraining order was based on a finding that
no abuse had occurred, and was unaware that, in fact, the finding was based on Judge
McAdam’s belief that the parties’ separation and/or the court’s “talking to” directed at
Romer would prevent Romer from engaging in further acts of domestic violence. In
response to Elenita’s attorney’s statement that, “We didn’t agree with the denial of the
restraining order,” Judge Longstreth said, “I understand that, and that’s your right to
19
Judge McAdam had determined that Romer had in fact committed acts of domestic
violence against Elenita. The failure to apply the section 3044 presumption in
determining the issue of legal custody of the children was an abuse of the court’s
discretion.9
This error was compounded by Judge Groch’s failure to reconsider the custody
order after having found at the October 2013 hearing that Romer’s past domestic violence
and his more recent conduct warranted the issuance of a restraining order. Although the
court clearly found that Romer’s acts of domestic violence warranted the issuance of a
restraining order, the court did not apply the section 3044 presumption in making the
custody order, despite the fact that, as noted, the court was aware of section 3044’s
presumption against awarding joint custody to a perpetrator of domestic abuse.10 Instead
disagree with that, but I think that I need to go with what the findings were, not with what
you wish they were.”
9 The FCS report failed to acknowledge the presumption contained in section 3044.
Despite noting that Romer had admitted to engaging in physically violent conduct against
Elenita, the report recommended that the court order that the parties share joint legal
custody, with no mention of the fact that the allegations of domestic violence and
Romer’s admissions regarding that violence might necessitate the application of section
3044’s presumption. It is critical that the social workers who prepare the FCS reports be
aware of the provisions of section 3044, and in particular, the mandatory presumption,
and in making recommendations to the court, should, at a minimum, acknowledge that
the court may be required to consider whether the presumption has been triggered in
cases involving allegations of domestic violence.
10 Judge Groch’s comments regarding the implication of the issuance of a restraining
order appear to reflect a misunderstanding of the requirements of section 3044. We
reiterate, the presumption of section 3044 is triggered not by the issuance of a restraining
20
of properly applying the presumption at that point in time, the court said, “If you
currently have joint, legal custody—at this point, I’ll leave that in place.” The court then
indicated that Romer would have to comply with certain requirements in the future in
order to “overcome [the] presumption of Family Code section 3044.”
There is no reasonable basis for the trial court’s failure to apply the section 3044
presumption at either of the two hearings at which the court addressed custody in this
case. The trial court thus abused its discretion in awarding Romer joint legal custody
without applying the section 3044 presumption that it would be detrimental to the
children’s best interests to award joint legal custody.11 We therefore reverse the trial
court’s judgment to the extent that it orders that the parties share joint legal custody of the
children, and remand for the trial court to reassess that custody order in light of the
presumption set forth in section 3044, and to enter a new custody order after applying the
presumption.
order, but rather, by a finding that a parent has engaged in an act of domestic violence
against the other parent, the child, or the child’s siblings. If a domestic violence
restraining order has been issued, then it is clear that there has been a finding of domestic
violence sufficient to trigger the presumption of section 3044. However, the failure to
issue a domestic violence restraining does not necessarily mean that the court did not find
that a party committed domestic violence sufficient to trigger the presumption as well, as
this case demonstrates.
11 Because the trial court failed to apply the presumption, it follows that the court’s
award of joint legal custody could not have been based on Romer’s having rebutted the
presumption.
21
IV.
DISPOSITION
The appeal taken from the August 7, 2013 order is dismissed.
The portion of the judgment of dissolution in which the trial court awarded Romer
joint legal custody of the children is reversed. On remand, the trial court shall hold
further proceedings consistent with this opinion, and shall determine the legal custody of
the parties’ children after applying the presumption set forth in section 3044.
Specifically, the trial court may not award Romer joint legal custody unless Romer rebuts
the presumption set forth in section 3044 that an award of joint legal custody is
detrimental to the best interests of the children. Elenita shall recover costs on appeal.
AARON, J.
WE CONCUR:
McCONNELL, P. J.
O’ROURKE, J.

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