California Family Code § 3044 (a) creates a rebuttable presumption that granting sole or joint custody to a person who has committed domestic violence is “detrimental to the best interest of the child.” In April 2023, Cassaundra Campbell (C.C.) requested custody of her children and explained to the judge that a domestic violence restraining order (DVRO) against the father Demilo Visnich (D.V.) had been requested. After a hearing, the judge denied C.C.’s motion for sole custody based on the father’s alleged misconduct. But in doing so, the court failed to address the rebuttable presumption established by the Family Code. That issue formed the basis for an appeal. The parties are referred to by their initials in the appellate court’s ruling and will be so referred here.

This scenario was repeated in July 2023, when C.C. sought a modification of the restraining order and visitation rights. In a Restraining Order After Hearing (ROAH), Marin Superior Court Judge Sheila Shah Liechtblau ordered the parties, who were not married, to share custody, but again did so without considering the Family’s Code’s rebuttable presumption. The judge explained her ruling by noting that “the public policy of California is to ensure children have frequent and continuing contact with both parents.”

C.C. appealed from both orders, arguing that the trial court failed to apply the Family Code’s requirement. She had supplied the court that could issue the DVRO with 100 pages of texts and emails to show how D.V. abused her. She also asked the court to add their two children to all DVRO orders.

A unanimous 3-0 opinion on the legality of modifying the custody agreement was issued by Division Three of California’s First District Court of Appeal on September 16. The opinion, authored by Justice Victor Rodriguez with concurrences by Presiding Justice Alison M. Tucher and Justice Carin T. Fujisaki, ruled that the “trial court prejudicially erred by awarding joint custody without determining D.V. had overcome the presumption in section 3044.” Rodriguez said that “the presumption in section 3044 is triggered whenever an ROAH issues — even when it’s the product of a stipulation,” as it was in this case.

However, the appellate court did not reach the same conclusion about C.C.’s request for a modification of the restraining order due to the timing of the ROAH. The opinion said that because of the ROAH, Judge Liechtblau was required to find that the “presumption had been overcome before awarding joint custody.” Because the court did not do so, Rodriguez wrote, “…we cannot conclude it would have issued the same orders had it followed the law.”

The opinion then explained that because the child has now reached the age of 18, the custody issues in the case are moot. However, he also said that the requirement established by the Family Code “still presents a significant issue, which is capable of repetition yet evading review.” Thus, the court continued to decide the matter.

Rodriguez first turned to C.C.’s contention that the trial court’s issuance of the stipulated ROAH was a “finding that D.V. had “perpetuated domestic violence against her and triggered the presumption against an award of sole or joint physical or legal custody to him.” The opinion agreed and concluded that Liechtblau “prejudicially erred by not determining the presumption was overcome before awarding joint custody in July 2023.”

The opinion also explained that under Family Code § 6306, a judge can only issue an ROAH if “an affidavit or testimony and any additional information shows…to the satisfaction of the court, reasonable proof of a past act or acts of abuse.” But, he wrote, “issuing the ROAH would have been an abuse of discretion … had perpetrated domestic abuse.”

The ruling next turned to the question of whether the trial court abused its discretion when it gave D.V. custody. Rodriguez explained the Family Code’s rebuttable presumption requirement and said it can only be overcome if sole or joint physical or legal custody is found to be in the best interest of the child and “specified factors, on balance, support legislative findings concerning the physical and legal custody of children.” Specific findings must be made and put on the record in writing.

Rodriguez emphasized that “…a trial court may issue an ROAH only if “an affidavit or testimony and any additional information provided to the court pursuant to Section 6306, shows, to the satisfaction of the court, reasonable proof of a past act or acts of abuse.” In this case, the ROAH constituted a judicial finding that D.V. had perpetrated domestic abuse and the parties’ stipulation also provided sufficient proof of abuse as well.

This raised the issue of whether the trial court violated § 3044 (a) when it issued the ROAH or when it ruled on C.C.’s request for modification of custody and visitation at a subsequent hearing. The opinion disagreed with C.C.’s argument that custody was at issue in these hearings. Rodriguez clarified by determining that the trial court had previously issued its custody order and already issued an ROAH which showed that D.V. had committed domestic violence. As a result, the court was required to determine D.V. had overcome the presumption in § 3044, (a) before issuing an award of joint custody.

“It did not,” Rodriguez concluded.

He then summarized, “…when a trial court accepts a stipulation and issues an ROAH, it has made a judicial finding that the restrained party perpetrated domestic violence. The presumption in section 3044 is thereby triggered, and the court must determine — putting its findings on the record — the presumption has been overcome before it can award sole or joint legal or physical custody to the perpetrator.” Judge Rodriguez finished by holding that no further action is required by the trial court.

The trial court’s order of April 2023 which issued a one-year DVRO was affirmed, but its July 2023 order awarding joint custody was reversed.