CALL NOW FOR CONSULTATION

Tel:(661) 322-8166

CALL NOW FOR CONSULTATION

Tel:(661) 322-8166

Custody Should Not be Awarded to Perpetrator of Domestic Violence

Posted By Anthony P. Azemika, Esq.   |   Comments (0)
Family Law, Child Custody & Visitation, Legal Cases,

 

 

In reversal, a California Court of Appeals has ruled that Trial Court was wrong in maintaining 50-50 timeshare after awarding Mother sole legal and sole physical custody of Children due to Father’s domestic violence. According to the Appellate Court, it was an abuse of discretion by Trial Court to award equal time to Father absent a showing that equal timeshare was in Children’s best interests.

In the case of Celia S. v. Hugo H., Mother and Father had a long romantic relationship. During their relationship, they had two children (now ages 12, and 6). The relationship ended after Father committed several acts of domestic violence. In February of 2014, Mother and Father stipulated to a Trial Court order for joint legal and joint physical custody of Children and an alternating weekly custody split.

In January of 2015, Mother invited Father to have dinner with her and the Children at her apartment. While dinner was cooking, Father left the room to take a phone call. Mother sat down where Father had been sitting and began to help their oldest Child with his homework. When Father returned, he demanded to have his chair back and when Mother refused, he allegedly pulled Mother up by her hair. While Mother tried to get away, Father punched her in her ribs or stomach. After they argued some more, Mother told Father to leave; Father did, but loitered outside. Mother called police, who arrested Father for domestic violence. The next day, Mother sought a Domestic Violence Protection Act restraining order and an order for sole legal and sole physical custody of the Children, per California Family Code Section 3044 [presumption that custody award to perpetrator of domestic violence is not in child’s best interests].

Trial Court issued a Temporary Restraining Order and scheduled a hearing. At that hearing, Trial Court heard conflicting testimony about the incident from Mother and Father, and received social worker’s report detailing Children’s observations and fears regarding Father’s domestic violence. Trial Court issued a one-year restraining order, required Father to complete a 52-week batterer’s program, concluded that Mother was a victim of domestic violence, and awarded her sole legal and sole physical custody of the Children. However, Trial Court left the parties’ 50-50 timeshare in place, after modifying the exchange location.

Claiming that Trial Court was wrong in maintaining the 50-50 timeshare on these facts, Mother appealed. Now, a California Court of Appeals has ruled that (1) Trial Court must apply Family Code Section 3044 presumption in any case where it makes a domestic violence finding; (2) Section 3044 presumption may be rebutted by a showing that it would be in child’s best interest to give custody to batterer; (3) Trial Court’s maintaining of 50-50 timeshare “effectively awarded [Father] joint physical custody” even though it labeled the order as visitation; (4) Trail Court may not circumvent Section 3044 requirements by labeling an impermissible custody award as visitation; and (5) Trial Court abused its discretion by failing to apply the Section 3044 presumption properly and awarding joint physical custody to Father without evidence that doing so would be in Children’s best interests. Finding no merit in Father’s other contentions, the Court of Appeals reverses Trial Court’s order and remands the case back to Trial Court for further proceedings consistent with its decision.

 

PLEASE COMMENT