When Custody is Given to an Abuser.....Research Cases

FVAP Custody Case Law  http://fvaplaw.org/custody-case-law/

Below is a list of FVAP’s published cases regarding child custody. These cases are binding legal precedent in all trial courts in California, and can be used to support domestic violence-related cases in trial court. But please note: This is not a comprehensive list. Rather, it is a list of FVAP’s published successful custody appellate cases since 2012.

Laws often change. Reviewing this list is not a suitable substitute for legal research specific to your case. Additional legal research should be done before citing any case law in trial court. While a decision below may be used to support your (or your client’s) case in court, it may not be the best decision to use in your particular case, and/or there may be additional cases that you should cite. This list does not constitute legal advice, and does not create an attorney-client relationship between you and FVAP.

To read a decision, click on the case name. See our Legal Resource Library for toolkits, tip sheets, court templates, and other custody resources for survivors.

When custody is granted to an abuser:

In re the Marriage of Fajota (2014) 230 Cal.App.4th 1487.  The Court of Appeal ruled that the trial court made two mistakes (twice “abused its discretion”) by awarding joint legal custody without applying Family Code section 3044, which says courts should almost never award joint legal custody to a parent who has committed domestic abuse against the other parent in the past five years, because it would be detrimental to a child’s best interest. This presumption against awarding joint custody applies when there has been a finding of abuse, even if a request for restraining order has been denied. Until the abuser rebuts (overcomes) the presumption against awarding joint custody, the presumption must be applied every time a court considers custody, even if the custody order will only be temporary. (FVAP litigated this appeal, which the court published.)

Jaime G. v. H.L. (2018) 25 Cal.App.5th 794  Under California law there is a presumption against awarding any custody to a domestic abuser. This means the court must give the survivor sole legal and physical custody, unless the abuser shows the presumption has been overcome, or “rebutted.”  When deciding whether the presumption has been rebutted, the court must consider 7-factors which are designed to help the trial court consider the effects of domestic violence and whether it will reoccur.  The presumption and rebuttal factors are found in California Family Code section 3044.  The 7 rebuttal factors are: best interest of the child(ren), successful completion of a batterer’s intervention program, successful completion of alcohol or drug counseling – if appropriate, successful completion of a parenting class – if appropriate, whether the perpetrator is on probation or parole and complying with the terms and conditions, whether the perpetrator is under a restraining order and has complied with the terms and conditions, and whether the perpetrator has committed any further acts of domestic violence.

The opinion in Jaime G. establishes that a trial court cannot award any type of custody to a domestic abuser without first making findings in writing or on the record (orally) about each of the seven-factors.  It is not enough just to find that joint custody is in the best interest of the child, the first factor.

When there is a recent restraining order against the abusive parent:

Christina L. v. Chauncey B. (2014) 229 Cal.App.4th 731. The Court of Appeal ruled that the trial court is obligated to apply the Family Code section 3044 in cases when there was a recent restraining order issued against a parent. Code 3044 is the “rebuttable presumption” against granting custody to an abuser, which says a trial court should err on the side of not giving child custody to a parent who was found to have committed domestic abuse. (FVAP litigated this appeal and obtained publication.)

When a parent who committed domestic abuse is granted 50/50 child visitation:

Celia S. v. Hugo H. (2016) 3 Cal.App.5th 655. After years of violent abuse from her ex-husband, the trial court granted our client a restraining order. At the same time, the court granted a 50% visitation timeshare of her children, meaning both parents had the children for about half of the time. This order effectively got around the legal presumption against awarding joint custody to an abuser (Family Code 3044) by calling the arrangement “sole custody” to our client, and “visitation” with the parent who had committed abuse. The Court of Appeal disagreed with the trial court, and confirmed that a 50/50 visitation timeshare order is in fact the same thing as a joint custody order. Therefore, the Court of Appeal said, the trial court committed an “abuse of discretion” by awarding the 50/50 visitation timeshare without applying the legal presumption of Family Code 3044, which says courts should err on the side of not granting custody to a parent who was found to be abusive. This case clarifies that the Family Code 3044 legal presumption (against awarding joint custody to a parent who committed domestic abuse) remains in effect for 5 years, even if a restraining order against the abuser has expired. This is also the first published opinion to confirm that Family Code section 3011(e)(1) requires the trial court to state, in writing or on the record, its reasons for deciding that a parent who committed abuse has overcome the section 3044 presumption, and should be awarded joint custody. Thus, the appellate court’s opinion clarifies the interplay between section 3044 and section 3011. (FVAP litigated this appeal and obtained publication.) Pro bono co-counsel: Gibson Dunn & Crutcher, LLP, and Legal Aid Society of Orange County

Out-of-state findings of domestic violence in custody cases:

Ellis v. Lyons (2016) 2 Cal.App.5th 404. This is the first California case to clarify that an out-of-state court’s finding of domestic violence triggers California’s presumption against granting custody to an abuser, under Family Code section 3044. Importantly, this case also confirms that if a trial court relied, at all, on California’s preference that both parents have “frequent and continuing contact” with their children to rebut (overcome) the 3044 presumption, then the decision is automatically “infected with legal error,” and must be sent back to the trial court for a new custody hearing. This is because the preference that both parents have “frequent and continuing contact” with their children is not an allowable reason for rebutting (overcoming) the 3044 presumption, because California recognizes that domestic violence is detrimental to the health, welfare, and safety of children. (FVAP obtained publication)

Modifying out-of-state custody orders after fleeing abuse:

Keisha W. v. Marvin M. (2014) 229 Cal.App.4th 581. The Court of Appeal ruled that California trial courts can modify (have jurisdiction to modify) another state’s custody order at the request of a survivor of domestic violence who fled to California because of abuse that happened in the other state. This is because, under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), California can become the legal “home state” of a child within 6 months of the abused parent filing for a restraining order and custody order in California. (FVAP litigated this appeal and obtained publication.)

International “child abduction” by non-abusive parent:

Noergaard v. Noergaard (2015) 244 Cal.App.4th 76. The Court of Appeal ruled that, in an international child abduction case where it is alleged that the child faces “grave risk” of harm if returned to the home country, there must be a fair hearing where the trial court considers any relevant evidence about abuse when making any decisions about important issues. The trial court in this case failed to provide this fair hearing to the mother, who alleged that spousal and child abuse by the father made it unsafe for them to return to the country. The Court of Appeal overturned the trial court’s decision and confirmed that, where there is evidence that the status quo in the home country was abusive, the survivor’s and children’s speedy return to the home country should not be the goal for California courts. (FVAP filed an amicus (friend-of-the-court) brief and obtained publication)

When custody is granted to an abuser with a prohibited reason for custody rulings:

In SY v. Superior Court, 29 Cal. App 5th 324 (2018) the Court of Appeal ruled that English language fluency cannot be used as a reason to grant custody. English language fluency now joins 6 other prohibited reasons to grant custody including: race, religion, disability, sexual orientation, relative economic position, and working motherhood. FVAP’s successful work to pass California legislation, AB 2044, which went into effect on January 1, 2019, nullified many of the parts of the decision that we disagree with. (FVAP litigated this appeal and obtained publication.) Pro bono co-counsel: Horvitz & Levy, Legal Aid Society of San Diego)