California Family Code, Section 3044(a), states as follows: "[u]pon a finding by the court that a party seeking custody of a child has perpetrated domestic violence within the previous five years against the other party seeking custody of the child ... there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child, pursuant to Sections 3011 and 3020. This presumption may only be rebutted by a preponderance of the evidence." (All references will be to the California Family Code unless otherwise stated.)
Consider the following hypothetical: Protected party (PP) has filed a Domestic Violence Restraining Order against the restrained party (RP). The parties have been married for over 10 years and have two minor children aged 8 and 6. PP alleges that RP has started drinking heavily for the last year due to RP losing employment. When intoxicated, RP had engaged in physical abuse against PP when both children were present, and the children have seen the injuries as a result of the physical abuse. Photographs of the injuries inflicted, and other property damage allegedly caused by domestic violence incidents are attached to the DVRO moving papers. The police were never called to the residence, and no subsequent report was ever made to any law enforcement agency. Upon reading the moving papers, the court grants PP a temporary DVRO for 21 days, including stay-away orders and exclusive use and possession of the family residence. The temporary DVRO grants no visitation to RP. RP complies with the terms of temporary DVRO and files a response denying all the allegations and states that PP was the aggressor and RP was merely acting in self-defense.
On the DVRO hearing date, both PP and RP and RP's attorney appear and meet and confer in the hallway before the matter is called. The parties reach a written custody and visitation agreement which grants joint legal custody to both parties and physical custody to PP with an alternate weekend visitation schedule to RP.
After reaching the agreement, the parties returned to the courtroom, where PP reiterates PP's desire for a DVRO. The matter proceeds to Hearing, and the DVRO is granted for five years. The court then raises the issue of custody and visitation. RP's attorney states the parties have reached an agreement on that issue and asks that the court make the agreement the order for custody and visitation. The agreement conflicts with Section 3044, and no testimony to rebut the Section 3044 presumption was proffered. Should the court accept the agreement?
Pursuant to Sections 3011 and 3020
In numerous places in Section 3044, the statute references Sections 3011 and 3020. Section 3011(a) provides: "In making a determination of the best interests of the child ... the court shall, among any other factors it finds relevant and consistent with Section 3020, consider all of the following: (1) The health, safety, and welfare of the child. (2)(A) A history of abuse by one parent or any other person seeking custody against any of the following: (i) A child to whom the parent or person seeking custody ... (ii) The other parent." Section 3020(a) states as follows: "The Legislature finds and declares that it is the public policy of this state to ensure that the health, safety, and welfare of children shall be the court's primary concern in determining the best interests of children when making any orders regarding the physical or legal custody or visitation of children. The Legislature further finds and declares that children have the right to be safe and free from abuse, and that the perpetration of child abuse or domestic violence in a household where a child resides is detrimental to the health, safety, and welfare of the child."
Section 3020(b) holds that "the Legislature finds and declares that it is the public policy of this state to ensure that children have frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, or ended their relationship, and to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy, except when the contact would not be in the best interests of the child, as provided in subdivisions (a) and (c) of this section and Section 3011." Additionally, Section 3020(c), provides that "when the policies set forth in subdivisions (a) and (b) of this section are in conflict, a court's order regarding physical or legal custody or visitation shall be made in a manner that ensures the health, safety, and welfare of the child and the safety of all family members."
It should also be noted that Section 3040(a)(1) also references, in making a custody determination, "Which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent."
To synthesize these three sections down to their practical application, the court must, in deciding custody and visitation orders, determine what is in the best interest of the child. This entails frequent and continuous contact with both parents. However, in making that determination, the court must look to the child's health, safety, and welfare, including whether there is abuse against the other parent and/or the child. As a matter of law, the California Legislature has declared that homes where domestic violence has occurred, and by extension, the perpetrators of that domestic violence, are detrimental to the health, safety, and welfare of the child. If a conflict between "frequent and continuous contact" and "health, safety, and welfare" of the child exists, the Legislature has stated that "health, safety, and welfare" takes precedence.
Rebutting the Presumption
As noted, Section 3044(a) states that a rebuttable presumption exists against an award of sole or joint physical or legal custody, as being detrimental to the best interest of the child, to a parent who has perpetrated domestic violence against the other parent or the child.
Overcoming the rebuttable presumption is like successfully negotiating three end-to-end teeter-totters without falling off. Each successive teeter-totter requires the domestic violence abuser to present sufficient evidence to cause each teeter-totter to tip in their favor.
Section 3044(b) provides "[to] overcome the presumption set forth in subdivision (a), the court shall find that paragraph (1) is satisfied." Specifically, the perpetrator of domestic violence has the burden to demonstrate "that giving sole or joint physical or legal custody of a child to the perpetrator is in the best interest of the child pursuant to Sections 3011 and 3020." If the testimony is sufficient to proceed beyond (b)(1), this leads to the second teeter-totter.
The second teeter-totter requires the court to weigh the factors in Section 3044(b)(2), "on balance, to support the legislative findings in Section 3020." Section 3044(b)(2) lays out six factors for the court to consider in determining whether a domestic violence abuser has rebutted the presumption. Half of the factors listed, assuming the matter proceeded to hearing within the statutory period after issuance of the temporary DVRO (typically 21 days), most likely cannot be completed by a domestic violence abuser in that short duration of time. Namely, Subsection (b)(2)(A), which requires successful completion of a batterer's treatment program that meets the criteria outlined in subdivision (c) of Section 1203.097 of the Penal Code; (b)(2)(B), which requires successful completion of a program of alcohol or drug abuse counseling, if the court determines that counseling is appropriate; and (b)(2)(C) which requires successful completion of parenting classes.
By contrast, it is possible that Subsections (b)(2)(D) through (F) could be complied with during that short period of time from issuance of the temporary DVRO to a hearing on the permanent DVRO. Namely, a party could be following the terms and conditions of their probation or parole. Subsection (b)(2)(D). Additionally, the restrained party could have complied with the restraining order and not committed further acts of domestic violence since its issuance. Subsections (b)(2)(E) and (F), respectively.
It is within the court's discretion to determine how much weight is given to each factor. As such, the RP, again, carries the burden to establish that, in weighing the factors, the court should allow the second teeter-totter to tip in RP's favor.
Assuming that the RP can establish that the six factors tip in their favor, the court then has to balance the evidence submitted for its consideration for 3044(b)(1) and weigh it against the six factors from 3044(b)(2)). If RP cannot cause this third and last teeter-totter to tip in their favor, then RP cannot rebut the presumption.
But what about our agreement?
One factor not listed under Subsections (b)(2)(A) through (F), or anywhere in 3044, is a subsection specifying that "The parties reached an agreement on the record, outside of court or at mediation." A voluntary agreement, in and of itself, does not end the 3044 analysis. Nor can a party use Section 3020(b) or 3040(a)(1) stated preference for "frequent and continuing contact" with both parents as a basis to rebut the presumption "in whole or part." Section 3044(b)(1). So, where does that leave the agreement signed by the parties?
Turning back to the hypothetical, should the parties' agreement on the issue of custody and visitation be considered or given any weight? Section 3044(e) states that "when a court makes a finding that a party has perpetrated domestic violence, the court may not base its findings solely on conclusions reached by a child custody evaluator or on the recommendation of the Family Court Services staff, but shall consider any relevant, admissible evidence submitted by the parties." As such, an agreement could be relevant and admissible evidence because the law presumes that parents act in the child's best interest. As stated in Troxel v. Granville, 530 U.S. 57, 68-69 (2000), "the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children." The Troxel court continued there is "a presumption that fit parents act in the best interests of their children" and "so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to question further the ability of that parent to make the best decisions concerning the rearing of that parent's children." Id.
However, relevant and admissible does not equate to being binding on the court. The court should first inquire whether PP was informed of the rebuttable presumption under Section 3044. Section 3044(h) requires the court to notify the parties of Section 3044 and provide a copy to the parties before they attend custody mediation. Was this done before the agreement was reached in the hallway between the self-represented PP and the attorney-represented RP? If not, what is the effect of the failure to provide that information to PP? Should PP still be bound after being informed of Section 3044 or be offered a choice to disavow the agreement? What if both parties were represented by counsel? Would that make a difference in the analysis? The parties should also be cognizant of whether the minor child will be an additional protected party under the DVRO and its effect on accepting any agreement.
Additionally, since the parties reached an agreement on custody and visitation, is the issue of custody and visitation even still before the court at the DVRO hearing? If the parties reached an agreement for custody or visitation (even if not included in the initial DVRO application), if PP or RP seeks to make the agreement for custody and visitation orders part of the DVRO findings, using the Restraining Order After Hearing Form (DV-130) and custody and visitation order (DV-140) attachments, then, even with an agreement, the issue is before the court, and court must comply with Section 3044. The court, theoretically, is without jurisdiction and cannot, on its own, raise the issue of child custody and visitation when the DVRO does not seek any custody or visitation orders and the children are not listed as additional protected parties. The same would likely be the case if the DVRO was dismissed and the court was merely asked to sign an agreement reached between the parties. However, the court could consider the domestic violence issue at future hearings regarding custody. Section 3044(g).
But what about Section 3011(a)(5)(A)?
Section 3011(a)(5)(A) states "[w]hen allegations about a parent pursuant to paragraphs (2) or (4) have been brought to the attention of the court in the current proceeding, and the court makes an order for sole or joint custody to that parent, the court shall state its reasons in writing or on the record. In these circumstances, the court shall ensure that any order regarding custody or visitation is specific as to time, day, place, and manner of transfer of the child as set forth in subdivision (c) of Section 6323." Section 3011(a)(2)(A) deals with violence against the other parent or child. Section 3011(a)(4) deals with the use of illegal or controlled substances by either parent. Section 3011(a)(5(B) states, "[t]his paragraph does not apply if the parties stipulate in writing or on the record regarding custody or visitation."
How does Section 3011(a)(5)(A) and (B) fit into the discussion about the enforceability of an agreement reached between the parties and Section 3044? Under Section 3011(a)(5)(B), if the parties reach an agreement or state one on the record, the court is not required to consider the issue or history of domestic abuse against the child or the parent when determining the best interest of the child. However, a closer reading of Section 3011(a)(5)(B) alleviates the court's requirement to "state its reasons on the record" for making a specified "order for sole or joint custody" as well as visitation orders under Section 3011(a)(5)(A). The presumption being made that any agreement would be specific as "to time, day, place, and manner of transfer of the child as set forth in subdivision (c) of Section 6323" However, it does not alleviate the court from following Section 3044 even if an agreement has been reached. Further, Section 3044(f)(1) and (2) require that the court state in writing or on the record if the presumption has been rebutted and the court's rationale in making said finding.
So, is the agreement reached between the parties binding on the court? No published decision resolves the issue with a bright-line rule. Therefore, it depends....
Bonus: In light of the Easter Holiday, here is an Easter egg for bragging rights: What effect does the reference in Section 3044(a) to "subparagraph (C) of paragraph (1) of subdivision (b) of Section 3011" have, if any, in your analysis?