Marriage of Fajota (2014)

The following case is an example of why it is important to remind the judicial officer to apply the Family Code section 3044(a) presumption when there’s been a finding of domestic violence against one of the parents and a parenting plan has to be determined.  Otherwise, the financial and emotional expense and delay of an appeal will only make matters worse.

In Marriage of Fajota (2014), the Fourth District, Division One, Court of Appeal held that the family court judge abused his discretion in awarding joint legal custody to a father by failing to apply the “mandatory” Family Code section 3044(a) rebuttable presumption after a finding that the father committed domestic violence.  This presumption provides that an award of joint or sole physical or legal custody to a person who within the last five years has been the subject of a judicial finding of domestic violence against the other parent, the child or the child’s siblings is detrimental to the best interest the child(ren).  The presumption shifts the burden of proof to the parent who committed domestic violence to prove by a preponderance of the evidence that an award of custody would be in the child(ren)’s best interest.  (For more on what a rebuttable presumption and proof by a preponderance of the evidence are, see Rebuttable Presumptions and Standards of Proof.)

Rather than recite them, I’ll leave the facts of the case for you to read.  It goes without saying that domestic violence restraining orders are issued in family court typically for far less harmful conduct than this father’s physical and emotional abuse of his wife.

Relevant family law

The Domestic Violence Protection Act (DVPA) authorizes the family court to issue a restraining order “for the purpose of preventing a recurrence of domestic violence and ensuring a period of separation of the persons involved, if an affidavit . . . shows, to the satisfaction of the court, reasonable proof of a past act or acts of abuse.” (Fam. Code secs. 6300, 6220 [purpose of DVPA stated].) However, the fact that a trial court finds past abuse does not require that the court issue a restraining order; rather, a court may decline to issue a restraining order. Thus, the court will not necessarily issue a restraining order in every case in which there has been a finding of a past act of domestic violence.  (Fajota, at fn. 8.)   In other words, even if there is a finding of domestic violence, if the judicial officer believes the abuse will not recur, he or she may deny a permanent restraining order request.  The failure to issue a domestic violence restraining does not necessarily mean that the court did not find that a party committed domestic violence sufficient to trigger the presumption as well.  (Id. at fn. 10.)

The appellate court in reviewing custody and visitation orders looks for an abuse of discretion, applying the substantial evidence standard to the family court’s factual findings.  A court also abuses its discretion if it applies improper criteria or makes incorrect legal assumptions.  (Linder v. Thrifty Oil Co. (2000).)   While the presumption is rebuttable, where there is a finding of domestic violence, the judicial officer must apply the Family Code section 3044(a) presumption, or it is an abuse of discretion.  A court may not “‘call . . . into play’ the presumption contained in section 3044 only when the court believes it is appropriate.”  (S.M. v. E.P. (2010).) 

A court abuses its discretion in making a child custody order if there is no reasonable basis on which it could conclude that its decision advanced the best interests of the child.  (Marriage of Burgess (1996).)   There is no reasonable basis for a trial court’s failure to apply the Family Code section 2044( a) presumption when the family court judge makes a finding of domestic violence.

The appellate court also noted that the Family Court Services (FCS) “report recommended that the court order that the parties share joint legal custody, with no mention of the fact that the allegations of domestic violence and [the father’s] admissions regarding that violence might necessitate the application of section 3044’s presumption.  It is critical that the social workers who prepare the FCS reports be aware of the provisions of section 3044, and in particular, the mandatory presumption, and in making recommendations to the court, should, at a minimum, acknowledge that the court may be required to consider whether the presumption has been triggered in cases involving allegations of domestic violence.”  (Fajota, at fn. 9.)


Because the family court judge did not apply the Family Code section 3044(a) presumption after making a finding of domestic violence, the judgment was reversed and remanded with directions to the family court judge to apply the presumption and make a new custody order after applying it.


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