In Jaime G. v. H.L. (2018), Division Seven of the Second District Court of Appeal in Los Angeles addressed the modification of a prior custody and visitation order at a domestic violence restraining order hearing in which the father, Jaime, was found to have perpetrated domestic violence against the mother, H.L. This appeal by H.L is based on the resulting order of joint legal and physical custody of the parties’ seven year old son, Matthew, with more parenting time awarded to Jaime, than to H.L., in what the family court judge concluded at a prior hearing was Matthew’s best interest.
Under Family Code section 3044(a), a rebuttable presumption exists that an award of any custody to anyone that has perpetrated domestic violence within the past five years is inappropriate, i.e., detrimental to the best interest of the child. To determine whether this presumption has been overcome, the judicial officer “shall consider” each of the seven factors listed in Family Code section 3044(b). Those factors are:
(1) Whether the perpetrator of domestic violence has demonstrated that giving sole or joint physical or legal custody of a child to the perpetrator is in the best interest of the child. In determining the best interest of the child, the preference for frequent and continuing contact with both parents, as set forth in subdivision (b) of Section 3020, or with the noncustodial parent, as set forth in paragraph (1) of subdivision (a) of Section 3040, may not be used to rebut the presumption, in whole or in part.
(2) Whether the perpetrator has successfully completed a batterer’s treatment program that meets the criteria outlined in subdivision (c) of Section 1203.097 of the Penal Code.
(3) Whether the perpetrator has successfully completed a program of alcohol or drug abuse counseling if the court determines that counseling is appropriate.
(4) Whether the perpetrator has successfully completed a parenting class if the court determines the class to be appropriate.
(5) Whether the perpetrator is on probation or parole, and whether he or she has complied with the terms and conditions of probation or parole.
(6) Whether the perpetrator is restrained by a protective order or restraining order, and whether he or she has complied with its terms and conditions.
(7) Whether the perpetrator of domestic violence has committed any further acts of domestic violence.
Under Family Code section 3011(e)(1), when either a history of abuse or habitual or continual illegal use of controlled substances is alleged against a person, and the family court judge awards sole or joint custody to that person, the judge must state “in writing or on the record” his or her specific findings.
The primary issue in Jaime G. v. H.L. is whether the family court judge must state his or her specific findings (i.e., a recital of specific facts) as to all seven of the above factors if he or she concludes the presumption has been rebutted. In this case, the family court judge had decided the first factor, “the best interest of the child,” overrode the others. He continually stated the basis for his ruling was that Jaime
was more suitable and stable than H.L. When pressed by H.L.’s attorney to state his findings as to all seven factors, the judge agreed. However, while doing so, H.L.’s attorney continually interrupted the judge: “Mother’s counsel was not helpful in assisting the trial court complete this statutory obligation. Counsel repeatedly interrupted the court, even after the court politely asked counsel to stop interrupting,” enough so that the judge ended the hearing without stating his reasoning as to all of the seven factors.
The appellate court held that this “’in writing or on the record’ requirement [from Family Code sec. 3011(e)(1)] is most reasonably interpreted to require specific mention of each of the seven section 3044 factors,” the Legislature’s “mandatory checklist for family courts” . . . “to give due weight to the issue of domestic violence.” The appellate court sent the case back to the family court to prepare an express statement of reasons on each of the seven factors listed in Family Code section 3044(b).