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Case of the Month Archive

April 2022

An essentially 50/50 visitation schedule violated Fam C §3044 despite mother being awarded sole legal and physical custody. . .


In a partial reversal, the First District held that the trial court abused its discretion in ordering a visitation schedule that amounted to joint custody after finding father committed domestic violence against mother and awarding sole legal and physical custody to mother pursuant to Fam C §3044 [rebuttable presumption exists against custody award for perpetrator of domestic violence].


City and County of San Francisco v. H.H.

(February 17, 2022, modified March 18, 2022)

Court of Appeal 1 Civ A161503 (Div 2) __ Cal.Rptr.3d __, 22 Cal. Daily Op. Serv. 2860, 2022 WL 822877, 2022 FA 2027. Per Kline, J. (Richman, Acting P.J. and Miller, J., concurring). San Francisco County: Hwang, J., order affirmed in part, reversed in part, and remanded with direction. For Appellant (A.M.): Fawn Jade Korr, Sarah B. Jacobvitz, Cory D. Hernandez, Arati Vasan, Jennafer Dorfman Wagner, Erin Canfield Smith, Mark Donnell Flanagan, Thomas G. Sprankling, and Melissa A. McCall. For Respondent (H.H.): Pro Per. For Amici Curiae (A Safe Place et al.): Christina A. Alvernaz, Eva Jefferson Paterson, and Rau Mona Tawatao. CFLP §G.26.5.


Father and mother are parents of a son, D.H., who was born in September 2015. After mother told father that she was pregnant with D.H., father got "'so angry, he kicked [her] in the stomach.'" In March or April of 2015, after mother saw father downtown with another woman, father got upset and slapped mother, grabbed mother by her hair and "yanked so hard he tore out two big braids and left a bald spot on her scalp." Mother called the police, but father left before they arrived.

In September 2015, mother gave birth to D.H., which resulted in both D.H. and mother spending time in critical care. During D.H.'s month long hospital stay, father visited once. Around the end of 2015, a paternity test confirmed that father was D.H.'s biological father, and mother filed for child support. Father "was furious and called mother many times, calling her a bitch." In early 2016, as mother was leaving for a child support hearing, she found her tires punctured and flat, and was later told by people in her building that they had seen father flattening the tires. At the hearing, father was angry and aggressive at mother, yelling at her and threatening her, resulting in mother becoming "so scared she went into the wrong courtroom." Father was arrested.

In 2016, father sought custody orders, which resulted in the court granting mother temporary sole physical and legal custody. In October 2016, mother filed a request for a restraining order against father, which was denied. Father then sought a restraining order against mother, which was continued to January 11, 2017. Prior to the hearing, the court granted father visitation two days per week. Father did not appear at the January hearing to review the visitation schedule and father's restraining order request, resulting in the restraining order request getting taken off the calendar and the custody portion of the hearing continued to February 23, 2017. Although present at the January hearing, mother did not know the custody portion of the hearing was rescheduled and did not attend the February hearing. The trial court ordered joint legal and physical custody of D.H. and increased father's parenting time to weekly visits from Tuesday through Friday. Mother filed a request to return to sole legal and physical custody but was not able to serve father.

Problems escalated after the implementation of the new schedule, including father yelling at mother in front of D.H. at exchanges, father insulting and threatening mother, and father returning D.H. late after visits. Mother was scared to ask the court to change the custody order because "father was 'so angry and intimidating,' including threatening to 'try to kill [mother] if [she] took him to court.'" On multiple occasions in 2018, father called Child Protective Services (CPS), accusing mother of threatening him or hurting D.H., which mother denied. CPS interviewed mother and her older children and closed each case. In December 2018, father returned D.H. with "'so many scratches and bruises that [mother] took him to the doctor, and the doctor reported it to CPS.'" Mother spoke with CPS and the case was closed. In January 2019, father took D.H. to urgent care, accusing mother of burning D.H. with a cigarette. Father then refused to return D.H. to mother for "'many weeks'" and filed an ex parte request for sole custody, which the court denied on February 1, 2019. Father still refused to return D.H. until March 18, 2019.

After a hearing on April 2, 2019, the court found it was in D.H.'s best interests to continue the existing custody and visitation orders, noting "that CPS found the allegations of neglect by mother unfounded and closed the case, and found there was 'no credible evidence' supporting mother's request for sole custody and termination of father's visitation." Both parties were ordered to participate in the Kids Turn co-parenting program.

On September 30, 2019, mother received about 30 phone calls from a woman asking if she was D.H.'s mother, and mother could hear a man's voice in the background. The next day, the same woman called and told mother "'…I've been beating your son.'" Mother could hear father in the background making threats about blowing up mother's car and house with the kids in it, beating up mother, and having a gun. Mother called 911 and obtained an emergency protective order against father's girlfriend.

Father continued to insult or threaten mother during exchanges. In May 2020, father threatened to hurt or kill mother on several occasions and mother was "'scared for [her] life…'" D.H. told mother "'over 100 times'" that father, the girlfriend, and D.H.'s older brother hit him. D.H. returned from father's house on July 6, 2020, with "'big red bags under his eyes'" and said father had punched him in the chest. Problems with father not returning D.H. to mother at court-ordered times continued, including an occasion in 2020 where father kept D.H. for several days beyond his scheduled visit.

Mother filed a request for a domestic violence restraining order (DVRO) on July 25, 2020, seeking protection from father for mother, D.H., and mother's two other children, and requesting sole legal and physical custody of D.H. The trial court issued a temporary restraining order (TRO) granting mother legal and physical custody of D.H. with no visitation for father and set a hearing for August 12, 2020. Father responded by denying mother's factual assertions and claiming that mother was addicted to prescription pills. Father requested modification of the custody order to give him physical custody during school days and every other weekend. On August 12, 2020, the trial court granted mother's request to review father's response, and continued the hearing to August 26, 2020, extending the TRO but reinstating father's custodial time with D.H. to Tuesdays through Fridays. At the August hearing, mother testified to incidents of abuse and threats by father. Father, on the other hand, did not testify, relying on his sworn declaration "'basically denying all of [mother's] unfounded and uncorroborated statements.'" Mother's attorney argued that if the court enters a restraining order based on father's abuse of mother, joint custody of D.H. is not appropriate until Fam C §3044 is rebutted, and requested a statement of decision.

The trial court (San Francisco County's Hwang) granted a 3-year restraining order protecting mother and her two older children but removed D.H. from the scope of the order. The trial court granted mother temporary sole legal and physical custody of D.H. pursuant to Fam C §3044 and left intact the existing visitation schedule under which D.H. lived with each parent approximately half of the time. The trial court declined to issue a statement of decision on this case. Mother's attorney argued that leaving this schedule in place violated Fam C §3044 "because the 'essentially 50/50' time share was a 'de facto joint custody order.'" The trial court noted the objection and stated, "'I think this is in the best interest of the minor. I think that this is the schedule that the child has had for a number of years now.'" Claiming the trial court erred by ordering a visitation schedule that amounted to joint physical custody and therefore violated Fam C §3044, mother appealed, and the First District affirmed in part, reversed in part, and remanded.


A mandatory presumption. . .
The justices first outlined the requirements of Fam C §3044, noting that there is a rebuttable presumption against an award of sole or joint physical or legal custody of a child to a perpetrator of domestic violence. The panel stressed that the presumption is mandatory and must be applied in any situation in which a finding of domestic violence has been made, and a court "'may not 'call … into play' the presumption … only when the court believes it is appropriate.'" (quoting In re Marriage of Fajota (2014) 230 Cal.App.4th 1487, 1498).

The panel went on to note that the Fam C §3044 presumption may be rebutted by showing it would be in the child's best interest to give custody to the perpetrator of domestic violence. Additionally, if the trial court determines that the Fam C §3044 presumption has been overcome, it must state its reasons in writing or on the record, including specific findings on each of the factors enumerated in subdivision (b).


Consider the legal effect of the order, not the label. . .
Turning to the present case, the justices noted that the trial court found that Fam C §3044 applied and therefore granted sole legal and physical custody to the mother. On appeal, mother argued that despite the trial court's formal award of sole physical and legal custody to her, the trial court violated Fam C §3044 when it ordered a visitation schedule that essentially amounted to a 50/50 timeshare. The justices agreed.

In reaching its conclusion, the panel looked to the Fourth District's reasoning in Celia S. v. Hugo H. (2016) 3 Cal.App.5th 655 [holding that the trial court erred by maintaining a 50/50 timeshare after awarding mother sole legal and physical custody of the children due to domestic violence, and without showing that an equal timeshare is in the children's best interests]. Specifically, "[e]xplaning that 'in determining the true nature of the court's order, we must consider the legal effect of the order, not the label the court attached to it.'" (quoting Celia S., 3 Cal.App.5th at 664). Additionally, the panel noted that "the Celia S. court agreed with the mother's contention that 'the trial court may not circumvent section 3044 by characterizing its order as merely an award of visitation,'" (quoting Celia S., 3 Cal.App.5th at 658).

In the present case, the panel held that the visitation schedule, three days with father and four with mother, "clearly amounted to joint physical custody." Additionally, the panel noted that the trial court "obviously did not make any finding that the section 3044 presumption was overcome, as it granted mother sole legal and physical custody…" The justices reasoned that to order a visitation schedule that was essentially joint physical custody, "the court would have had to find the presumption overcome by a preponderance of the evidence showing the order was in the child's best interest … [a]nd the court would have had to state its reasons for making these findings 'in writing and on the record'…" As none of these requirements were met, the justices held that the trial court failed to comply with Fam C §3044 when it ordered a visitation schedule that clearly amounted to joint physical custody after finding that §3044 applied without making any findings that the §3044 presumption had been overcome.


Trial court should have issued a statement of decision. . .
The justices then turned to mother's argument that by denying her request for a statement of decision, the trial court violated Fam C §3022.3 [after a trial on a question of fact in a custody proceeding, the court must issue a statement of decision per CCP §632]. The panel noted that while generally the statute applies when there has been a trial followed by a judgment, and not to an order on a motion, there are exceptions created for special proceedings. The panel went on to explain: "In determining whether an exception should be created, the courts balance '"(1) the importance of the issues at stake in the proceeding … and (2) whether appellate review can be effectively accomplished even in the absence of express findings.'" (quoting Gruendl v. Oewel Partnership, Inv. (1997) 55 Cal.App.4th 654, 660).

In the present case, the justices noted that the importance of issues bearing on child custody and visitation are obvious, and that "[t]he need for clear and specific findings to facilitate appellate review, as well as to inform the parties to ensure consideration of the proper factors in the first instance, is illustrated by the present case." The justices found that the trial court's order, awarding father a nearly equal timeshare that amounted to joint custody, was "irreconcilable with the custody order under section 3044, and the only explanation the trial court provided, other than a conclusory statement that it was in the child's best interests, was that 'this is the schedule that the child has had for a number of years now.'" For those reasons, the justices held that the trial court erred in refusing mother's request for a statement of decision.

Accordingly, the First District affirmed the trial court's order granting mother sole legal and physical custody of D.H., reversed the trial court's visitation order, and remanded for reconsideration of the visitation order and consideration of any motions for modification consistent with its opinion.





The justices noted that on remand, the trial court may award father visitation that does not amount to joint custody, in compliance with the statutory provisions governing proceedings involving allegations of domestic violence. The trial court may also hear a request from father to modify custody subject to the Fam C §3044 presumption.


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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