Law Offices of Andy Cook
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Tenacious Mother’s Attorney Able to Get Judge Reversed in Domestic Violence Case

California Family Code section 3044 basically requires a judge not to award joint or sole custody to a parent when there has been a finding that the parent perpetrated domestic violence against the other parent within the previous five years. There are seven exceptions to this rule, such as the completion of a domestic violence batterer’s course by the offending person. But the parent who committed the domestic violence has the burden of proof to show that one of the seven exceptions apply. And if one of those exceptions do apply, the judge has to stake “on the record” which exception or exceptions do apply.

In a case just decided by the California Court of Appeal, the judge (Hon. Dean Hansell) started to explain why he was giving the father more time than the mother even though the judge had granted a two year domestic violence restraining order against the father. But the mother’s attorney kept interrupting the judge, who finally gave up and said “this hearing is over because you continue to interrupt”.

The judge summarized his reasoning on the record without further argument from counsel but did not mention each of the seven exceptions. This, the appeals court said, was error. “The purpose of (section 3044)”, said the Court, “is to move family courts, in making custody determinations, to consider properly and to give heavier weight to the existence of domestic violence”. This is because “courts have historically failed to take sufficiently seriously evidence of domestic violence”.

In this case, the court was bothered by the fact that Father was awarded custody, even though the court found that he was a batterer. Paradoxically, no batterers program was ordered, even though completion of a batterer’s program is one of the seven exceptions. For this reason, the Court of Appeal noted “[t]he family court in this case began stating specific findings on the record but was unable to complete that statement”.

The lawyer’s role in all of this did not go unnoticed. “Mother’s counsel was not helpful in assisting the trial court complete this statutory obligation” said the opinion, which was authored by the Hon. John Wiley. “Counsel repeatedly interrupted the court, even after the court politely asked counsel to stop interrupting”.

The end result of all of this was for the justices to order the trial court to hold a new hearing and to provide a complete statement of specific reasons for its order.

As for the reason for the domestic violence restraining order in the first place, the facts apparently were that the father was continuously berating the mother in front of their son and had scratched her across her chest, forcefully pushed her, physically removed the child from the mother’s home without returning him, and had threatened her on multiple occasions to take the boy to Guatemala. Indeed, the parties had separated because of the father’s apparent violent behavior towards the mother.

The case, entitled Jaime G. v. H.L., was certified for publication, which means it is binding on attorneys and lower California courts throughout the State.

As stated above, this restraining order was for two years. In California, domestic violence restraining orders may last up to five years.

Law Offices of Andy Cook are located in San Diego, CA and serves clients in and around San Diego including: Alpine, Bonita, Cardiff By The Sea, Carmel Valley, Coronado, Del Mar, El Cajon, Escondido, Imperial Beach, La Jolla, La Mesa, Lakeside, Lemon Grove, Mission Hills, National City, Pt. Loma, Poway, Ramona, Rancho Bernardo, Rancho Peñasquitos, Rancho Santa Fe, Santee, Solana Beach, and San Diego County.