Family Code section 3044 is triggered when parties stipulate to a one-year domestic violence restraining order.
Background for Restraining Order
The parties in C.C. v. D.V. dated for several years and had two children together. In 2016 a parentage case was filed and the parents shared joint legal and physical custody.
In 2022 the mother requested a domestic violence restraining order (DVRO) against the father. In that request, the mother asked the court to include the children as additional protected parties.
The DVRO request was consolidated with the paternity case, and the temporary restraining order granted sole custody to the mother. Thereafter the court conducted a hearing in regard to custody. The mother reminded the court that there was a pending DVRO order against the father. The court, however, ordered joint legal custody referring to Family Code section 3020 (b) which requires frequent and continuing contact with both parents.
Issuance of Restraining Order and Custody Orders
In 2023, the DV hearing was held. During the DV hearing, dad’s counsel indicated that custody was not “at issue” and that the parties had stipulated to the restraining order. The attorney also said that the parties would separately address custody. The court kept primary custody with mom but said that the father could have equal parenting time when he attended six therapy sessions.
The court did not address the factors found in Family Code section 3044.
The mother later filed a motion to modify custody and argued that the father could not have custody based on Family Code section 3044. The court ruled that there was no finding of domestic violence. The mother appealed the ruling.
There were two issues were before the appellate court:
The first issue is whether the Stipulation for a Restraining Order Triggers the Presumption of Family Code section 3044.
The appellate court emphasized that the manner of obtaining proof to establish a restraining order is irrelevant. Proof can be by stipulation, affidavit, or testimony. The important factor is whether there is reasonable proof that a past act of abuse occurred. If such proof exists, Family Code section 3044’s presumption against sole or joint custody is triggered. In this case, the stipulation to the one year restraining order was sufficient evidence that domestic violence had occurred, thus triggering the presumption under Family Code section 3044.
The second issue was whether the Court Erred by Not Addressing the Presumption Under Section 3044.
The appellate court found that the trial court did not explicitly address the factors found in Family Code section 3044 in its custody order. When the presumption of Family Code section
3044 is triggered, the trial court must make specific findings on the record about every factor in the statute and explain why the presumption was overcome.
In this case, the trial court failed to make specific findings on whether the presumption against joint custody had been rebutted by the father. The appellate court determined that the trial court erred by not addressing this presumption before issuing the joint custody order in 2023, after the parties entered into a DVRO stipulation.
Key Takeaways
A Stipulation to a DVRO Triggers the Presumption of Domestic Violence
Key Point:
Even if the domestic violence restraining order (DVRO) is obtained through a stipulation (rather than a court hearing), the presumption under Family Code section 3044 against awarding custody to the perpetrator of domestic violence is triggered.
Why it Matters:
The method by which the DVRO is obtained (whether through stipulation, affidavit, or testimony) is not as important as whether there is reasonable proof of domestic violence. A stipulation can still provide sufficient evidence to activate the presumption against sole or joint custody.
The Court Must Address the Presumption Against Joint Custody Before Awarding Custody
Key Point:
The court must address the Family Code section 3044 presumption against joint custody before issuing custody orders. This includes evaluating whether the perpetrator of domestic violence has rebutted the presumption by demonstrating that it is in the child’s best interest to have shared custody.
Why it matters:
In this case, the appellate court found that the trial court failed to make the required findings under section 3044 before awarding joint custody. This procedural oversight led to the reversal of the custody order.
Family Code Section 3044 Requires Specific Findings on the Record
Key Point:
When Family Code section 3044 is triggered, the court must make specific findings on the record about whether the presumption is rebutted. These findings cannot be implied.
Why it Matters:
Courts must explicitly state their reasons for awarding custody to a parent who has perpetrated
domestic violence. If the presumption is not properly addressed, the custody order may be reversed on appeal.
If you are dealing with a similar family law issue or need assistance with a restraining order in Orange County, consider reaching out to Treviño Law. Our office in Laguna Hills, easily accessible from the 405 and 5 freeways, is here to help with your legal needs.
Disclaimer: This article provides general information and does not establish an attorney-client relationship. For specific legal advice, please contact Treviño Law, Inc.