How is child custody decided in California in a divorce or paternity case? Normally, the answer can be found (at least in part) in California Family Code section 3040, which states, “the court shall consider, among other factors, which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent”.
But allowing contact with the other parent is not the only factor. As the recent case of Ellis v. Lyons points out, section 3040’s preference for frequent and continuing contact with the noncustodial parent does not apply when it has been determined that within the past five years one of the parents has perpetrated domestic violence against the other parent, the child in question, or the child’s siblings.
In Ellis, the mother obtained a domestic violence restraining order against the father from a Massachusetts court, which is where the mother lived with the child in question. The custody case, however, had originated in California, where the father lived. Therefore, the Massachusetts court got involved just so the peace could be kept until the California court could hear a motion to modify the parties’ previous custody and visitation orders, which had been made in 2009. But in getting involved, the Massachusetts judge said that the child, who actually testified, was a credible witness and was afraid of the father. Apparently, the child was scared because she had witnessed — among other things — a physical fight between her father and her uncle while she was visiting the father in California.
During October, 2014, a hearing in California on the mother’s request to change custody — so that she would have sole custody and not just primary physical custody — took place. The mother started out by saying that she no longer needed the Massachusetts protective order, which was set to expire in about three days anyway, and so there was a stipulation that “the Massachusetts protective order is null and void effective today”.
After listening to the child testify, the California court said that it “does not see that there has been domestic violence perpetrated against the minor child . . . The Court believes that the minor child has an agenda”. Accordingly, the court denied the request to limit the father’s custodial time.
Mother appealed, and the Court of Appeal reversed. The problem was Family Code section 3044, which states that once there has been a finding of domestic violence, “there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child”.
There are a number of ways to rebut the presumption, but one of the ways that is expressly not allowed is the general goal of allowing both parents time with the child, as implied by section 3040, mentioned at the start of this blog. Yet the trial judge had stated “the court notes that under Family Code section 3040, the petitioner-father is clearly the parent more likely to allow the child frequent and continuing contact with the other parent and that mother is not the parent likely to allow frequent and continuing contact”.
The appeals court also noted that section 3044 — the domestic violence statute — applies if any court has made a finding that domestic violence has occurred, even if that court is based in another state and even if that court was not considering child custody and visitation as a whole but the limited issue of domestic violence.
The Court of Appeals decision, which was authored by Justice Lamar Baker, was certified for publication, which means that it may be relied on as precedent by attorneys and other judges.