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Case of the Month Archive

December 2021

Joint custody order was reversed where evidence supported that father was perpetrator of domestic violence. . .


In a reversal, the Fifth District held that the trial court abused its discretion by awarding joint custody of children without informing the parties of Fam C §3044 [rebuttable presumption exists against custody award for perpetrator of domestic violence] or without applying presumption of the statute where substantial evidence supported that father was the perpetrator of domestic violence.


Noble v. Superior Court (Noble)

(August 19, 2021)

Court of Appeal 5 Civil F081597, 71 Cal.App.5th 567, 286 Cal.Rptr.3d 522, 2021 FA 2012, per DeSantos, J. Merced County, Seymour, J., order reversed. For Petitioner (Desirae Noble): Cory D. Hernandez, William R. Peterson, and Catherine Lynn Eschbach. For Respondent (Superior Court): N/A. For Real Party in Interest (Forestt Noble): Skye Elaine Emery. CFLP §G.26.5.


Desirae and Forestt Noble have two minor children together. In December 2018, Desirae filed a dissolution proceeding and request for a DVRO against Forestt. The DVRO petition was ultimately dismissed for failure to obtain service on Forestt, but in April 2019, the trial court granted the dissolution petition by default and awarded sole legal and physical custody of the children to Desirae. Desirae then moved to Utah to join their children who had been living there with Desirae's parents.


On April 23, 2019, Forestt filed a motion to set aside the default judgment, and the trial court set the hearing on this motion for September 10, 2019. Meanwhile, in May 2019, Desirae filed for and received a temporary DVRO against Forestt from a Utah court. In her response to Forestt's motion to set aside the default judgment, Desirae filed a responsive declaration, providing evidence of abuse, which included medical records, a police report showing that Forestt was arrested for allegedly hitting Desirae in the mouth, and an e-mail from Forestt in which he stated "'yes I hurt you physically, and the reason doesn't even matter.'"


In October 2019, the trial court appointed an attorney for the children and ordered him to prepare a report that would include a review of the Utah proceedings as well as the parties' criminal backgrounds and any safety concerns. Meanwhile, on October 22, 2019, the Utah court issued a 10-year protective order against Forestt. In his report to the trial court, the children's attorney submitted that Forestt "'has abused or committed domestic violence against [Desirae], or that there is a substantial likelihood [Forestt] immediately threatens [Desirae's] physical safety.'" However, the children's attorney also reported that "both parents appeared to be in better shape apart than they were together; neither, alone, was dangerous for the children" and "it appeared to be in the children's best interest for the parents to have a great deal of time with them." Forestt also argued that Desirae had not completed services arising out of a child protective services case against her.


On January 31, 2020, the trial court granted Forestt's motion to set aside the default judgment, granted the parties joint legal and physical custody, and ordered the parties to attend custody medication in order to formulate a custody agreement. In making this order, the trial court did not mention Fam C §3044 [rebuttable presumption exists against custody award to perpetrator of domestic violence]. At the hearing on February 28, 2020, the trial court adopted the mediation agreement of the parties, again without mentioning Fam C §3044.


In July 2020, both Forestt and Desirae filed competing motions to modify the custody order. In Forestt's motion, he alleged that Desirae had moved and refused to give him her address or comply with the custody transfer order. In Desirae's motion, she alleged that she had moved because Forestt continued to stalk and harass her and claimed that Forestt had pointed a gun at the children.


In August 2020, after a hearing on the parties' motions to modify custody, the trial court modified the custody order only with respect to when each parent would have custody, giving them alternating weeks with the children. The trial court, however, left the joint custody order in place. Desirae appealed and the Fifth District reversed.


On appeal, Desirae first argued that the trial court abused its discretion by failing to inform the parties of the existence of Fam C §3044 or provide them with a copy of the statute. Finding that Fam C §3044(h) imposes an affirmative duty on the court to inform the parties of the statute's existence, the justices agreed with Desirae. Specifically, Fam C §3044(h) provides that "'[i]n a custody or restraining order proceeding in which a party has alleged that the other party has perpetrated domestic violence…, the court shall inform the parties of the existence of this section and shall give them a copy of this section prior to custody mediation in the case.'" The justices further noted that the purpose of this notice requirement is to "'ensure that parties in custody mediations [are] informed about and provided a copy of [the statute]'" because "mediators generally do not tell their clients about the statutory presumption." The panel held that, here, the trial court erred by failing to comply with this notice requirement, particularly since it was aware of the Utah protective order as well as other evidence of domestic violence submitted by Desirae.


The justices also agreed with Desirae's second argument that the trial court erred by failing to apply the presumption of Fam C §3044. The justices found that although allegations, without more, of domestic violence do not create a presumption against custody, substantial evidence supported application of the statute's presumption. First, Desirae submitted medical records and police reports regarding domestic violence. Second, the trial court was aware of the Utah protective order as well as the allegations of domestic violence that Desirae made. And finally, the attorney for the children reported that Forestt "'abused or committed domestic violence'" against Desirae. Thus, the trial court abused its discretion when granting joint legal and physical custody without applying the presumption of Fam C §3044. Accordingly, the Fifth District granted Desirae's writ of mandate and directed the trial court to vacate its interim custody orders and reconsider custody based on the presumption of Fam C §3044.





In a footnote, the justices noted that although the evidence of domestic violence (medical records, police reports, the Utah protective order, and children's attorney's report) were before the court, the "record does not show the family court specifically considered [the Fam C §3044 presumption] in making its orders." Per Fam C §3044(a), this presumption may be rebutted by a preponderance of the evidence, and the trial court may have had this rebuttal in mind when it awarded joint custody. After all, Desirae had failed to comply with an open child protective services case that resulted in temporary placement of the children with Forestt and, per the children's attorney's recommendation, "it appeared to be in the children's best interest for the parents to have a great deal of time with them." However, as the justices pointed out in the opinion, Fam C §3044(f) requires the court, in determining the presumption has been overcome, to make specific findings on each of the factors listed in Fam C §3044(b).


Library References
10 Witkin, Summary of Cal. Law (11th ed. 2021) Parent and Child, §200
Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group) ¶¶7:329.5 et seq.



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