Domestic Violence Dramatically Affects Child Custody Decisions in Family Law Court

In a year in which California’s Court of Appeal has issued numerous opinions about domestic violence restraining orders, another one came out Thursday, based on a case right here in San Diego.

In a unanimous decisions, three justices of Division One of the Fourth District of the Court of Appeal held that once a judge decides that domestic violence has occurred between a couple with children, the person who “did it” is NOT entitled to even joint custody, unless he or she can prove certain things such as the completion of a parenting class.

In the 21 page opinion, Justice Cynthia Aaron, writing for the court, based the decision on Family Code section 3044. “The clear terms of section 3044”, Justice Aaron wrote, “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 the parent has perpetrated any act of domestic violence against the other parent in the preceding five years”.

In this case, entitled Marriage of Fajota, the appeals court faulted (and thus reversed) the decisions of two trial court judges, although there were really three judges involved in the case at the trial level. The first judge did not get into a section 3044 analysis because he found that earlier on, another judge had heard a request for a restraining order and denied it. But that earlier judge had actually made a finding that domestic violence had occurred; he just decided it would be best not to grant a restraining order. But when the victim tried to prevent the dad from getting joint legal custody, that first judge said no. He said section 3044 did not apply because the earlier judge did not grant the restraining order. But the appeals court said that section 3044 applies whenever there is a finding of domestic violence, not just whenever a domestic violence restraining order is granted. In other words, a judge can find that there is domestic violence but not grant a restraining order if he or she thinks it would be inappropriate or if there is a belief that the domestic violence that did occur is not going to occur again.

Unfortunately for the mom, the next thing that happened was more domestic violence from the dad. Enter the second judge. Unlike the first judge, he did grant a restraining order — for a period of one year. But the second judge decided not to take away the father’s joint legal custodial rights. As Justice Aaron said, “[a]lthough 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 this point, I’ll leave that in place’. The court then told the dad, `[i]n 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’”. Justice Aaron faulted the second judge because he did not apply the section 3044 presumption in making the custody order despite the fact that he was aware of the section’s presumption against awarding joint custody to a perpetrator of domestic abuse. She went on to say that his comments “appear to reflect a misunderstanding of the requirements of section 3044”.

Interesting, the appeals court also faulted Family Court Services, which provides mandatory mediation services to parents in San Diego County who have a custody dispute. In a footnote, Justice Aaron wrote, “[t]he FCS report failed to acknowledge the presumption contained in section 3044. Despite noting that [the dad] had admitted to engaging in physically violent conduct against [the mom], the report [from the mediator to the judge] 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 [the dad’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”. None of this occurred, even though the mediator wrote that he or she was aware of three reports of child abuse against the dad to Child Welfare Services, including one that same month based on the dad’s admission that he had struck the children with a belt. Instead, the mediator still recommended joint legal custody.

Justice Aaron was joined in her decision by Justices Judith McConnell, who is the presiding justice of the San Diego branch of the Court of Appeal, and Terrence O’Rourke. Not that this had anything to do with the outcome, but given the politically charged nature of domestic violence, one cannot resist noting that the justice who wrote the opinion and one of the justices who joined her are women, and the three judges involved at the trial court are men. However, nothing in the opinion indicates whether the mediator was a man or a woman. And, of course, domestic violence cases are not always between individuals of the opposite sex.

Anyway, the Court of Appeal ordered that its decision be published, meaning it can be cited for precedent in Family Law cases throughout California — not just San Diego.