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California Family Law Report

 

 

Case of the Month (from CFLR Monthly)

December 2014
[Archive]

Fam C §3044 presumption applies even if permanent restraining order was denied . . .

 

In reversal, Fourth District holds that trial court erred by making joint custody order without considering Fam C §3044 rebuttable presumption that such an order is not in children’s best interests if parent has committed domestic violence during previous five years

 

In re Marriage of Fajota

(October 30, 2014)

California Court of Appeal 4 Civ D064816 & DV031757, __Cal.App.4 th __, __Cal.Rptr.3d__, 2014 FA 1665, per Aaron, J (McConnell, PJ and O’Rourke, J, concurring). San Diego County: Longstreth and Groch, JJ, reverses. For appellant: Margaret Grignon, (213) 457-8000. For respondent: pro per. CFLP §G.26.5.

 

Elenita and Romer Fajota were married in June 2005 and later had three children. In 2006, Romer began a course of domestic violence against Elenita that included hitting her, throwing things at her, slamming her against a wall, destroying her possessions, and pushing her down. After one “particularly violent episode,” Elenita got a restraining order against Romer, but he was not deterred by it. In 2008, Romer was arrested after he “grabbed Elenita’s hair, jerked her head forward and back, and caused her head to hit a wall.” Later that year, Elenita and the kids moved to Texas. Romer followed her there, but their marriage ended in divorce in 2010. After that, Romer somehow convinced Elenita that he was a changed man and they reconciled.

 

In the spring of 2012, the family returned to California, where Elenita and Romer remarried in October. Three months later, Elenita found out that Romer was cheating on her and told him she wanted another divorce. Romer’s physical abuse began anew. By March 2013, Elenita had had enough and told Romer that their marriage was over. However, the couple continued to live together in the family home, which led to more physical violence. After one such episode, Elenita threatened to call police and Romer calmed down, and later moved out. In April 2013, Elenita sought a domestic violence restraining order against Romer. In her supporting declaration, she included a litany of his domestic abuse since 2006, along with descriptions of his excessive spanking of their kids and the kids’ fear of him. Elenita asked the trial court to award her sole legal and physical custody of the kids. The trial court issued a TRO, along with the custody order that Elenita asked for, pending a hearing on a permanent restraining order. In his response, Romer “admitted to virtually all of the physical contact” that Elenita had listed, but claimed that she hadn’t been harmed by it as much as she claimed to have been. Meanwhile, Elenita also filed for divorce, seeking sole legal and physical custody of the kids.

 

At the hearing on Elenita’s request for a permanent restraining order, she testified about many of Romer’s abusive episodes. Romer admitted doing those things and spanking the kids, but claimed he hadn’t hit Elena that hard and was just trying to get her to shut up. When the hearing concluded, the trial court found that Romer had committed domestic violence, but seemed convinced that he wouldn’t do that anymore because he would obey the trial court’s admonishments and his attorney and his parents would see to it that he refrained from such conduct. The trial court emphasized that it was not saying that Elenita hadn’t met the legal requirements for a permanent restraining order, but rather that it didn’t believe that she would need protection in the future. The court assured Elenita that Romer was “ ‘not going to hit [her] in the head to get [her] attention anymore.’ ” Accordingly, the trial court denied her request for a permanent restraining order. The trial court then ordered Elenita’s disso consolidated with the DVPA proceeding, and awarded her sole and exclusive use of the family home, while admonishing Romer not to go there. The parties then stipulated to a parenting plan.

 

In June 2013, they participated in a Family Court Services (FCS) conference. In its report, FCS noted that Romer had admitted the domestic violence previously alleged against him, as well as three child abuse reports against him. Nonetheless, FCS recommended that Elenita and Romer have joint custody of the kids. At a subsequent hearing, Elenita objected to that recommendation, given Romer’s history of domestic violence. The trial court, however, said it was reluctant to make an order for sole legal custody since Elenita’s request for a permanent restraining order had been denied. On August 7, 2013, the trial court issued an order adopting FCS’s report and recommendations, but also requiring Romer to complete a six-week parenting class by October 13. Elenita appealed that order.

 

On September 23, 2013, Elenita filed another request for a DVPA restraining order against Romer. In her supporting declaration, she described Romer’s harassment of her since May 2013, and gave details of an incident on September 20 in which he entered the family home without her permission when she was out of town and took a bed, some furniture and appliances, a laptop, and other personal items. Elenita stated that although she filed a police report, she still felt unsafe because Romer essentially ignored court orders to stay away from the family home. In addition, she stated that Romer had been keeping her and the family home under surveillance and questioning the kids about her activities. She also asserted that he called her vulgar names, threatened to take the kids away from her, and demanded “money or sexual favors” for taking care of the kids. The trial court issued a TRO and scheduled a hearing for October 15. On October 2, Elenita took Romer’s default in the pending disso. In response to her request for a permanent restraining order, Romer admitted most of her allegations, but claimed that she wanted the order to get back at him for going into the family home and taking various things. He also asked the trial court to set aside his default and to address custody and visitation issues.

 

At the hearing on October 15, the trial court commented that Romer persisted in “ ‘doing things on [his] terms instead of court terms and by agreement with [Elenita].’ ” When the hearing concluded, the trial court issued a one-year restraining order. Although the trial court advised Romer about Fam C §3044 and its presumption, it left the existing joint legal custody order in place. Instead, the court ordered him to six months of high-conflict co-parenting class because it wanted him “ ‘to follow the prior orders and also be a condition of overcoming that Family Code section 3044 presumption.’ ” He needed to do that, the court said, “ ‘to make sure [he was] eligible to have joint [] legal custody.’ ” The trial court then entered a disso judgment that provided, among other things, that Elenita and Romer would have joint legal custody of the kids, she would have sole physical custody, and he would have visitation. After Elenita appealed the judgment, the Fourth District ordered her appeal consolidated.

 

Acting on the consolidated appeals, the Fourth District dismissed one and reversed and remanded on the other.

 

The mandatory presumption . . .
Elenita contended that the trial court erred by failing to apply the Fam C §3044 presumption when it made its custody orders. The justices noted that this statute requires a trial court to apply the presumption that ordering sole or joint legal or physical custody to a parent who has committed domestic violence against the other parent within the last 5 years is not in the child/children’s best interests. Moreover, in determining whether the presumption has been rebutted, the statute requires the trial court to consider the factors listed in subdivision (b): whether the perpetrator has demonstrated by a preponderance of the evidence that a custody award would be in the kids best interests (the preference for frequent and continuing contact may not be considered); whether the perpetrator has completed a batterer’s treatment program; whether the perpetrator has completed any necessary drug or alcohol counseling or parenting class; whether he/she has complied with probation/parole conditions, and/or restraining orders; and whether he/she had committed further acts of domestic violence.

 

One error after another . . .
When the panel looked to see whether those requirements had been part of the trial court’s actions, it was clear that none of the judges who made custody orders had applied the Fam C §3044 presumption, despite the fact that Romer generally admitted most of the domestic violence that Elenita alleged. One of the judges stated that “a restraining order is not a ‘penalty’ for prior bad acts, but instead, is intended to protect someone going forward,” a sentiment that ignored the fact that an admission of domestic violence triggers the mandatory presumption in Fam C §3044. Another of the judges focused on the fact that another judge had denied Elenita’s request for a permanent restraining order, the justices found. It was error, the panel said, for that court to believe that the lack of such an order precluded the application of the §3044 presumption, for the one has no bearing on the other. And finally, the panel found no reasonable basis for the judge at the most recent hearing to make Romer aware of the presumption and then fail to apply it. This judge was aware that his conduct was the basis of a restraining order, yet impermissibly left in place the existing joint custody order. Summing up, the justices held that the lower court abused its discretion by failing to apply the §3044 presumption. They dismissed Elenita’s appeal from the August 7, 2013, order and reversed the part of the disso judgment in which Romer was awarded joint legal custody of the kids. They remanded to the trial court for further proceedings at which the trial court must reassess its custody order and enter a new custody order after applying the presumption. The panel concluded that the trial court may not award Romer joint legal custody unless he successfully rebuts the presumption.

 

 

Comment

  

Three things are clear from this opinion: (1) where there has been a finding of domestic violence within the last 5 years, application of the §3044 presumption is mandatory; (2) the fact that a trial court has declined to issue a permanent restraining order does not mean that the presumption does not apply; and (3) it is an abuse of discretion for the trial court not to apply the presumption on facts that make its application mandatory.

 

We can’t help but think that Romer must be a really persuasive talker. He was able to convince Elenita that he was a changed man despite the fact that he’d been beating her for years before she left him the first time. Then, he was able to convince a judge that he would abide by the court’s rulings, listen to the guidance of his attorney and his parents, and did not need a permanent restraining order to keep him away from Elenita. And, even after he violated the stay-away order re the family home, the judge in that proceeding felt compelled to help him avoid having the §3044 presumption applied to his case. We’ve rarely, if ever, been involved in a case where the trial court was so firmly convinced that a perpetrator of domestic violence was going to behave himself or herself in the future simply because of what was said to the judge. Either these judges were extremely naïve when it comes to domestic violence or Romer really snowed all of them.

 

Library References: 10 Witkin, Summary of Cal. Law (10th ed. 2005) Parent and Child, § 198; Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group) ¶5:96.3

 

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