The Consequences of Domestic Violence in California Divorce Cases
What does domestic violence have to do with child custody? At least in California, the answer is “a lot”.
We learned this once again recently when the California Court of Appeal, in a case called Noble v. Superior Court, granted emergency relief in a divorce case to a mother (“Desirae”) who had been the victim of domestic violence in Utah by the father (“Forestt”). It was clear that the mother had been victimized because a court in Utah had previously entered a protective order against the father and for the benefit of the mother. Nevertheless, the judge awarded custody of the children, at least in part, to the father.
Here is what happened. Desirae filed for divorce in California; Forestt did not respond; and thus Desirae got sole legal and physical custody by default in April 2019. Then, she moved to Utah, where the parties’ two minor children, who were about six and three, were living with her parents.
Things got out of control later that year. Forestt filed a motion to set aside the California divorce, claiming that he was unaware of the divorce proceeding and thought that the children had been sent to Utah so that he and Desirae could work on their marriage. At about the same time, Desirae filed for and obtained a temporary restraining order against Forestt from a Utah court. Then, in October, 2019, the Utah court extended the restraining order to ten years, but in January, 2020, in the California proceedings, the judge granted the father sole custody on a temporary basis because the mother had relocated with the children outside of California without permission. Eventually, the parties reached an agreement on custody, but in July of 2020, they each accused the other of misconduct and the father once again ended up with sole custody. Once again, the court ended up returning the schedule to shared custody. That’s when the Court of Appeal got involved.
The appellate court found that the trial judge’s rulings had run afoul of Family Code section 3044, which creates a rebuttable presumption that an award of even joint –let alone sole—custody to a person who has committed domestic violence in the past five years is not in the best interests of the child or children of the victim. There are ways to overcome the presumption –such as showing the completion of an anger management course—but unless the offending party presents that evidence, he or she cannot get primary custody, joint custody, or even significant visitation.
The specifics of section 3044 are so powerful that they require the judge, before the parties go to court ordered mediation to resolve a custody or visitation dispute, to give each party a copy of section 3044 so that they understand the law.
Section 3044 applies, by the way, even if there was no restraining order issued as a result of the domestic violence. All that is necessary to put section 3044 at play is a finding that domestic violence occurred at some point during the previous five years. Even if the domestic violence finding was made by another judge in another case in another state, as was the case in Noble, section 3044 still applies. In the words of the Court of Appeal, citing a previous case, “’[t]he legal effect of the presumption (of section 3044) is to shift the burden of persuasion on the best interest question to the parent who the court found committed domestic violence’”. As the justices noted, if the offending party ends up overcoming the presumption of section 3044, the court must, among other things, state its reasons in writing or on the record. To put it bluntly, according to the Noble court, the trial judge “may not decline to apply the presumption when a finding of domestic violence has been made”. As the justices continued, “[t]he presumption is rebuttable, but the court must apply the presumption in any situation in which a finding of domestic violence has been made. A court may not “’” call . . . into play’” the presumption contained in section 3044 only when the court believes it is appropriate”’”.
Noble was a 3-0 decision which, in the end, reversed the family court’s custody orders and directed the judge to reassess custody in light of the presumption set forth in section 3044, and to enter a new custody order after applying the presumption.