Keith R. v. Super. Ct. (2009)

In Keith R. v. Superior Court of Orange County (2009), on Father’s request for a writ of mandate (i.e., ordering the trial court judge to act in accordance with its mandate), the Fourth District, Second Division, Court of Appeal found the family court judge erroneously applied the changed-circumstances rule rather than the best-interest test in granting a mother’s request to relocate out of state with the minor child when it appeared there had never been an adversarial proceeding leading to a final judicial custody determination.  

This appellate opinion is notable because it concludes, consistent with a stipulated custody order (meaning a written parenting agreement signed by the parents and made a court order), that a domestic violence restraining order which includes an order of custody of a minor child under the Domestic Violence Prevention Act (DVPA) (Fam. Code sec. 6200, et seq.) is not a final judicial custody determination.  It is an interim order of custody.  

The opinion seems, however, to avoid making its conclusion a per se rule.  It implies that under the right circumstances a custody order issued under the DVPA may be a final custody determination.  For it to be a final, the judicial officer must have provided each party an opportunity to be meaningfully heard without being arbitrarily deprived from offering relevant evidence bearing on the minor child’s best interest, after which the judicial officer must have carefully considered all of the factors with which to rebut the Family Code sec. 3044(a) presumption and all circumstances under a best-interest analysis including “the harm that may result from disruption of established patterns of care and emotional bonds.”  (For an explanation of the Fam. Code sec. 3044(a) rebuttable presumption, see Rebuttable Presumptions and Standards of Proof.)  

Providing an opportunity to be meaningfully heard on custody in a DVPA restraining order hearing is atypical, however, for various reasons.  This opinion becomes more confusing because whether a custody order issued under the DVPA is a final judicial custody determination was being decided alongside whether a move-away request was properly determined.


Father and Mother were married in mid-2004.  Their daughter was born in the fall of 2005.  Father petitioned for a divorce in September, 2006.  In February, 2007, the family court judge ordered joint legal and joint physical custody of the minor child and appointed a child-custody evaluator who recommended maintaining this parenting plan based on the minor child’s attachment to both parents.

In early 2008, Mother requested a temporary restraining order against Father.  On May 21, 2008, the family court judge issued a five-year restraining order against Father for harassment and stalking and awarded legal and physical custody of their daughter to Mother.  The judge required Father to participate in a fifty-two week batterer’s-intervention program and allowed only four hours of supervised visitation per month pending further order.

At some undiscernible point after the filing of the divorce proceeding (my guess is after she was given sole legal and physical custody), Mother requested she be permitted to move with the minor child to Arizona where the maternal grandmother lived.

Over seven days in June, 2008, October, 2008, and January, 2009, the family court judge “conducted hearings” on custody during which the judge acknowledged Father as “very loving and caring” toward their daughter and that their daughter was very attached to him.  Nevertheless, the judge focused heavily if not entirely on completion of the batterer’s-intervention program although it is only one of many factors in considering whether the Family Code section 3044(a) presumption has been rebutted.  She ordered that there would be no change in custody until all fifty-two weeks of the batterer’s-intervention program had been completed. 

On January 27, 2009, which was thirty-two weeks after awarding custody under the DVPA to Mother, the family court judge granted Mother’s move-away request, stating Father had failed to show a change in circumstances.  The family court judge declined to hear testimony from a therapist that Father “had no anger management problem and he’s not a danger to his minor child. . . .  At this point I don’t think it’s relevant  because at this point in time it’s too early.  And until there is a completion of batterers’ intervention program, I don’t think we are ready to address that issue.”  “I want to see the whole program come to an end at which time we will then rebut the [Fam. Code sec. 3044(a)] presumption.”  Father was awarded unmonitored visitation on alternating weekends, and although the opinion is silent as to whether Mother retained sole legal and physical custody of their daughter, I suspect she did based on the family court judges mistaken view that there had to be a showing of changed circumstances.

Law and Policy

[For my future use, this section is provided nearly verbatim from the opinion.]

When there are competing claims to custody, the family court must conduct an adversarial proceeding and ultimately make a custody award which is in “the best interest of the child.”  (Fam. Code sec. 3040(b).  In other words, what is the best interest of the minor child based on all the circumstances?  The purpose is to maximize the child’s opportunity to develop into a stable, well-adjusted adult.  Relevant factors include the child’s health, safety and welfare, the nature and contact with the parents, and any history of abuse by one parent against the child or other parent.  (Fam. Code sec. 3011.)  Also, the friendly-parent provision of Family Code section 3040(a)(1) requires the family court judge to consider “which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent. . . .”

Important policy concerns prevent DVPA restraining orders from being the “functional equivalent” of final judicial custody determinations.  “Domestic violence orders often must issue quickly and in highly charged situations. The focus understandably is on protection and prevention, particularly where the evidence concerning prior domestic abuse centers on the relationship between current or former spouses. Treating domestic violence orders as de facto final custody determinations would unnecessarily escalate the issues at stake, ignore essential factors (such as the children‟s best interest) and impose added costs and delays. It also may heighten the temptation to misuse domestic violence orders for tactical reasons” [as an attempt at an unfair shortcut to a favorable custody award, which is so often the case].

“Child custody proceedings usually involve fluid factual circumstances, which often result in disputes that must be resolved before any final resolution can be reached.”  (Montenegro v. Diaz (2001).)

Once there has been a final judicial custody determination as to the best interest of a child, the dual goals of judicial economy and protecting stable custody arrangement preclude revisiting the custody order.  (Burchard v. Garay (1986).)  This rule is based on principles of res judicata. (Id.)  A party seeking to modify a final custody order must satisfy the changed-circumstances rule, i.e., show a significant change of circumstances, e.g., showing that a different custody arrangement would be in the child‟s best interest.  (Marriage of Burgess (1996).)  And, where sole legal and physical custody has been awarded to one parent after a contested custody dispute, the noncustodial parent is not necessarily entitled to an evidentiary hearing.  (Marriage of Brown & Yanna (2006).) 

These principles do not apply to interim custody orders, which are not intended to be final judgments as to custody. “The best interest analysis is used when making a permanent custody determination initially.”  (Ragghanti v. Reyes (2004) [applying best-interest test in a move-away case despite mother’s evidence that child primarily lived with her and would suffer no detriment in any relocation]; see Marriage of Richardson (2002) [applying best-interest test in a move-away case where parties previously had stipulated to an initial custody order].)  In such situations, the family court must look to all of the circumstances bearing on the best interests of the minor child before devising a parenting plan.  (Marriage of Burgess (1996); see Marriage of LaMusga (2004); Montenegro v. Diaz (2001) [holding a stipulated custody order is not a final judicial custody determination without express language to that effect].)  “Child custody proceedings usually involve fluid factual circumstances, which often result in disputes that must be resolved before any final resolution can be reached.”  (Montenegro v. Diaz (2001).)

A finding of domestic violence in a family law case changes the burden of persuasion as to the best-interest test, but it does not limit the evidence the family court judge may rely on, and it does not eliminate the best-interest test.  (Fam. Code secs. 3020(a) and 3044(b)(1).)  The Family Code section 3044(a) presumption “does not change the best-interest test nor supplant other Family Code provisions governing custody proceedings.  This presumption may be overcome by a preponderance of the evidence showing that it is in the child’s best interest to grant joint or sole legal custody to” the restrained parent.   (Fam. Code sec. 3044(b)(1).)  “Nor does the statute establish a presumption for or against joint custody; again, the paramount factor is the child’s health safety and welfare.”  (Fam. Code secs. 3020(a) and 3040(a).)  

Additionally, with a move-away request, unlike the case in which sole legal and physical custody has been awarded to one parent, each party must been afforded the opportunity to be “meaningfully heard.”  (Marriage of Seagondollar (2006).)


The appellate court disagreed with Mother’s argument that the existing restraining order (including the custody order) entitled her to relocate to Arizona unless Father showed that the relocation would be detrimental to the minor child.  The family court judge based its approval of the move-away request on the fact that Mother had sole legal and physical custody arising from Family Code section 3044(a) presumption, which Father had not rebutted and on which he had been given no opportunity to be meaningfully heard.  The judge made no determination of the minor child’s best interest as required when there is only a temporary custody order. The changed-circumstances rule only applies after a final judicial custody order.  Neither the domestic violence restraining order (including the custody order) of May 21, 2008, nor the move-away order of January 27, 2009, constituted a final judicial determination.  Hence, the family court judge used the wrong legal standard.  

Father could not have rebutted the Family Code section 3044(a) presumption because only thirty-two weeks had elapsed between the time the restraining order issued requiring he complete a year-long batterer’s-treatment program prior to any change in custody and the time of the move-away hearing on January 27, 2009.  The family court judge erroneously focused solely on whether Father had completed such a treatment program under Family Code section 3044(b)(2) rather than considering all seven of the factors in Family Code section 3044(b) as required before finding Father had not met his burden in rebutting the presumption.  Further, the appellate court viewed the judge’s opinion that the presumption of Family Code section 3044(a) could only be rebutted by completion of the program as tending to corroborate the current order was only a temporary order.

The appellate court noted that while Father could not rely on the statutory preference for “frequent and continuing contact” with both parents under Family Code section 3020(b) (see Fam. Code sec. 3044(b)(1)), the minor child did not lose her right to have a meaningful relationship with both parents.  The minor child’s best interest must remain at the forefront of the family court’s considerations on custody in determining whether the presumption has been rebutted.

The appellate court ordered the family court judge to conduct a new trial on both permanent custody and the move-away request.  It admonished the family court judge to provide Father, as the party bearing the burden of persuasion under the Family Code section 3044(a) presumption, with “an opportunity to introduce evidence pertinent to the best interest of the child.  This includes evidence about the nature of Father’s relationship” with the minor child, “his ability and willingness to care for her, the extent, if any, to which he poses a risk of physical and emotional abuse,” his receptivity to being a “friendly parent,” and the minor child’s “needs for more than marginalized parental relationships.”  And, before reaching any final custody decision, the judge “should conduct a detailed review of the evidence presented at trial and carefully weigh all of the relevant factors required by section 3044.”