California Family Law Report

Case of the Month Archive

Order for new judge unnecessary because peremptory challenge to former judge may be filed . . .

In writ proceeding, Fourth District holds that trial court erred by applying changed-circumstances test instead of best-interests test where no final custody order had been made and existing custody order was made in domestic violence proceeding

Keith R. and H.R. were married in 2004; their daughter, B.R., was born the following year. In September 2006, Keith filed for divorce, asking for sole custody of the little girl. H.R. countered with accusations of domestic violence, and also requested sole custody. After an investigation and a hearing, the trial court (Judge Silbar) denied her request. In February 2007, a different jurist, Judge Pollard, awarded the parents joint legal and physical custody, and appointed a child-custody evaluator. The evaluator later recommended keeping the existing orders in force because B.R. was attached to both parents.

H.R. filed a request in 2008 for a TRO, alleging that Keith was stalking and spying on her; she claimed that a police officer had witnessed the stalking behavior. After several hearings, the court found that Keith had harassed and stalked his former wife, and ordered that he have no contact with her except through counsel and that he attend a 52-week batterer’s intervention program. The court awarded sole legal and physical custody of B.R. to her mother, and four hours of monitored visitation every month for Keith. The court heard custody issues over seven days in June and October 2008 and January 2009, during which it acknowledged that Keith is “ ‘a very loving and caring father’ ” and noted the bond he had with his daughter, but declined to change the custody order until Keith had completed the 52-week program.

Sometime before January 2009, H.R. sought an order permitting her to move to Arizona with her daughter; Keith opposed the move. In an order issued on January 27, the court authorized the move, finding that Keith had not shown changed circumstances. The court awarded Keith unmonitored visitation on alternate weekends, and scheduled another hearing to consider his request for extended visitation.

Keith petitioned the Fourth District for a writ of mandate directing the trial court to vacate its move-away order and to hold another custody trial before a different judge. Acting on his petition, the Fourth District issued the requested writ.

A matter of standards . . .
Keith argued that the trial court had incorrectly applied the changed-circumstances standard when it made its move-away order. The justices noted that where final custody has been determined, the court must apply the changed-circumstances standard in deciding whether to modify a custody arrangement, but where final custody has not been ordered, the applicable standard is the best interests of the child. Here, the lower court had based its order on the custody arrangement set forth in conjunction with the domestic violence restraining order. Such an order, the panel found, is not a final custody determination. Domestic violence orders are intended to address acts of abuse against victims, may issue without notice, and require a lesser burden of proof to obtain. The justices acknowledged that Fam C §3044(a) creates a rebuttable presumption that awarding custody to a perpetrator of domestic violence is detrimental to the best interests of the child. However, the panel continued, that statute does not change either the evidence that is admissible at the hearing or the best-interests requirement for making an initial custody order. Therefore, the justices found, the trial court erred by applying the changed-circumstances standard instead of the best-interests test.

Give the guy a chance . . .
The panel noted that the Fam C §3044(a) presumption may be rebutted by the factors listed in §3044(b); once rebutted, the trial court is free to award custody to the perpetrating parent. “This is particularly important in move-away cases,” the justices said, where permitting a move usually means that the parent left behind is unable to have frequent and continuing contact with the child. Accordingly, that parent must be “afforded the opportunity to be ‘meaningfully heard.’ ” In this case, the panel found, the move-away order effectively ended the custody trial, leaving Keith without a chance to rebut the §3044(a) presumption. Instead of reviewing all the factors that must be considered to rebut the presumption, the trial court had based its decision on only one: whether Keith had completed the batterer’s program. And despite the fact that Keith had completed only 32 weeks of the program by the date of the hearing, the trial court held that lack of completion against him, finding that he hadn’t met his burden of rebutting the presumption. All in all, the panel concluded, Keith was impermissibly denied an opportunity to present evidence regarding B.R.’s best interests, and he must be granted a new trial at which the lower court should apply the best-interests standard.

A challenging problem . . .
In conclusion, the justices addressed Keith’s request that they order a different judge to handle the trial on remand. They recognized that, as H.R. argued, it might be faster to let the same judge handle the remand proceedings. However, the panel emphasized that Keith should not lose, in the name of judicial efficiency, his right to file a peremptory challenge to the judge who made the underlying ruling. Given that right, the justices found that an order for a new judge was not required. They issued a writ of mandate, directing the trial court to vacate its January 27 order, including its supporting factual findings regarding the grant of sole custody to H.R. and its authorization for the move away, and to hold a new trial on custody before making a final or permanent custody determination.