California Family Code section 3044 says that a parent who has committed domestic violence against the other parent within five years is not allowed to have sole –or even joint– physical or legal custody of the parties’ children, unless the perpetrating parent proves by a preponderance of the evidence that he or she should, in fact, have joint or shared custody.

That’s a lot of legalese, but basically because of the mountain of research that shows that exposure to domestic violence is bad for children — even children who are not the actual victims of the violence — section 3044 was added about 20 years ago to make sure judges in California were not turning a blind eye to abusive behavior.

In the recent case of Celia S. v. Hugo H., however, a judge found that a father had perpetrated domestic violence against his kids’ mother but nevertheless ordered the parents to share the children on an equal basis, with the mother having the children for one week and the father having them for the next week. The judge appears to have thought he was getting around section 3044 by calling the father’s time with the children “visitation”, even though he had as much time as the other parent, who was now required by section 3044 to be the “custodial parent”.

The California Court of Appeal agreed with the mother that the judge should not have done this and reversed his judgment in a 3-0 decision. Writing for the court, Justice Richard M. Aronson stated, “[t]he nature of any order must be determined based on the order’s legal effect, not the label the trial court attaches”. The court “remanded”, i.e., sent the case back to the trial judge with instructions. “On remand”, Justice Aronson wrote, “the court may not award (the father) sole or joint custody because he failed to present any evidence to overcome section 3044’s presumption, but the court may award (him) visitation that does not amount to joint custody because nothing in section 3044 prevents a trial court from awarding visitation”.

By way of background, the parties, who were never married, broke up in 2014 (although they were apparently in the same home the night the fateful events took place) and a court at that time made a 50/50 time sharing order. The children at issue in this case were 10 and 5 a year later when the domestic violence apparently occurred. Their parents got into a fight when the father, who had been sitting at the dining room table, received a phone call. Afterwards, he returned to the table and apparently demanded that the mother give him his chair back. The mother apparently refused to comply, so the father apparently grabbed her by the hair and pulled her toward him. After the mother tried to push him away, the father apparently punched her in the ribs or stomach, causing her to lose her breath. The police were called, and the father was arrested.

The next day, the mother obtained a temporary restraining order. A follow-up hearing was scheduled, and at that hearing, the judge issued a one year restraining order. Under the law, he could have issued a restraining order for up to five years. The judge also ordered the father to complete a 52-week batterer intervention program. But his mistake was in explaining that with regard to custody and visitation, he was “going to leave the order the way it is”, which was that the children spend 50 percent with each parent.

Interestingly, the father argued on appeal that the entire case was moot because the one year period of the restraining order had expired. However, the appeals court noted that the presumption against joint custody in section 3044 remains in effect for five years regardless of whether an underlying domestic violence restraining order has expired.

The Celia S. case was certified for publication, which means it is binding precedent on judges and lawyers throughout California, including here in San Diego. The division of the Court of Appeal that decided Celia S. is based in Orange County.