Judge Reversed for Awarding 50 percent visitation in Domestic Violence Case

When a California family law judge issues a domestic violence restraining order, the person being restrained is not allowed to have sole –or even joint—custody of the parties’ children – unless that restrained person overcomes the presumption contained in Family Code section 3044 that such custody is not in the best interest of the kids.

In addition, when section 3044 applies, the judge is not even allowed to give the restrained person visitation (as opposed to custody) that is so generous that it basically is joint custody with a different name: visitation.

Because of these principles, a judge up in San Francisco (Hon. Victor Hwang) was recently reversed by the California Court of Appeal after issuing a three-year restraining order but leaving in place a 50 percent time share arrangement.

This case was called City and County of San Francisco v. H.H. (2022) 76 Cal.App.5th 531. It involved a boy who was born in September 2015, named D.H. In July 2020, while the boy was still four years old, the mother sought a restraining order against the father. There was a hearing on August 26, 2020, and the evidence produced was horrific. To begin with, when Mother told Father she was pregnant, Father grabbed her by her hair and yanked so hard he tore out two big braids and left a bald spot on her scalp.

After paternity tests showed that Father was indeed the father, he was “furious and called mother many times, calling her a bitch”. There was a hearing in 2016 for child support and when the mother went to drive to court, she found her tired punctured and flat. “Later that day, people in her building told her they had seen father flattening the tires”.

At the actual hearing, near the bathroom, Father came up behind Mother and yelled, “’”Bitch, I am going to beat the fuck out of you”’”. This frightened Mother so much that she went into the wrong courtroom. Father was arrested.

Due to a scheduling mix-up that resulted in Mother missing a hearing, Father obtained equal custody in February of 2017. Those orders were continued at a hearing on April 2, 2019.

On September 30, 2019, “[M]other received about 30 phone calls from a private number in which a woman asked if she was D.H.’s mother and [M]other could hear a man’s voice in the background. The next day, the same woman called and said, ‘””Bitch, you sucking his dick. I’ve been beating your son”’”.

In May 2020, Father told Mother he would “’beat [her] ass” if she called the police again. He also threatened to kill her. On July 6, 2020, when D.H. returned to the mother, he had “’big red bags under his eyes’” and said Father had punched him in the chest. On other occasions, the boy returned to the mother displaying violent behavior that included strangling her, pushing her, and yelling “’”fuck you!”’”.

Still, the judge kept the equal visitation order in place and did not include the child in the scope of the three-year restraining order. Instead, the judge said that if there were problems, either parent could report the other to Child Protective Services (“CPS”). When Mother’s attorney objected to the custodial orders on the basis of section 3044, the judge dismissed the concern, stating “I think this is in the best interest of the minor. I think that this is the schedule that the child has had for a number of years now”. Nevertheless, the judge found that section 3044 did apply and therefore granted “sole legal and physical custody” to Mother.

Relying on the reasoning from a 2016 case, Celia S. v. Hugo H. (2016) 3 Cal.App.5th 655, the appeals court noted that “’in determining the true nature of the court’s order, we must consider the legal effect of the order, not the label the court attached to it’” and that “’the trial court may not circumvent section 3044 by characterizing its order as merely an award of visitation’”.

The justices explained that the judge’s order did not make sense. “To order visitation that was effectively joint physical custody, the court would have had to find the presumption overcome by a preponderance of the evidence showing the order was in the child’s best interest –without consideration of the statutory preference for ‘frequent and continuing contact with both parents’—and to find the factors in section 3044, subdivision (b)(2), ‘on balance, support the legislative findings in Section 3020’. (Citations.) And the court would have had to state its reasons for making those findings ‘in writing or on the record’, including ‘specific findings on each of the factors in subdivision (b)’”.

The justices noted in their 3-0 opinion that “[n]one of these requirements were met”.