In what circumstances will the Cal. Fam. Code § 3044 presumption that granting custody of a child to a person who has perpetrated domestic violence is detrimental to the best interests of the child be rebutted?

(a) 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.

(b) 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.

(c) 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.

(d) The Legislature finds and declares that it is the public policy of this state to ensure that the sex, gender identity, gender expression, or sexual orientation of a parent, legal guardian, or relative is not considered in determining the best interests of the child.

(a) Upon 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, or against the child or the child's siblings, or against a person in subparagraph (A) of paragraph (2) of subdivision (a) of Section 3011 with whom the party has a relationship, 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.

(b) To overcome the presumption set forth in subdivision (a), the court shall find that paragraph (1) is satisfied and shall find that the factors in paragraph (2), on balance, support the legislative findings in Section 3020.

(1) The perpetrator of domestic violence has demonstrated 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. In determining the best interest of the child, the preference for frequent and continuing contact with both parents, as set forth in subdivision (b) of Section 3020, or with the noncustodial parent, as set forth in paragraph (1) of subdivision (a) of Section 3040, may not be used to rebut the presumption, in whole or in part.

(2) Additional factors:

(A) The perpetrator has successfully completed a batterer's treatment program that meets the criteria outlined in subdivision (c) of Section 1203.097 of the Penal Code.

(B) The perpetrator has successfully completed a program of alcohol or drug abuse counseling, if the court determines that counseling is appropriate.

(C) The perpetrator has successfully completed a parenting class, if the court determines the class to be appropriate.

(D) The perpetrator is on probation or parole, and has or has not complied with the terms and conditions of probation or parole.

(E) The perpetrator is restrained by a protective order or restraining order, and has or has not complied with its terms and conditions.

(F) The perpetrator of domestic violence has committed further acts of domestic violence.

(G) The court has determined, pursuant to Section 6322.5, that the perpetrator is a restrained person in possession or control of a firearm or ammunition in violation of Section 6389.

The clear terms of section 3044 require that a court apply a presumption that it is detrimental to the best interest of the child to award joint or sole physical or legal custody to a parent if the court has found that that parent has perpetrated any act of domestic violence against the other parent in the preceding five years. The presumption is rebuttable, but the court must apply the presumption in any situation in which a finding of domestic violence has been made. A court may not “ ‘call ... into play’ the presumption contained in section 3044 only when the court believes it is appropriate.” (S.M. v. E.P. (2010) 184 Cal.App.4th 1249, 1267, 109 Cal.Rptr.3d 792.)

The trial court found that on August 29, 2016, Omar perpetrated domestic violence against S.Y. The court stated that this finding triggered a rebuttable presumption that an award of sole or joint custody to Omar would be detrimental to A.'s best interest. Section 3044, subdivision (a) provides: "Upon a finding by the court that a party seeking custody of a child has perpetrated domestic violence against the other party seeking custody ... within the previous five years, there is a rebuttable presumption that an award of sole or joint

[240 Cal.Rptr.3d 146]

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 Section 3011. This presumption may only be rebutted by a preponderance of the evidence." The presumption shifts to the perpetrator the burden of persuasion that an award of custody to him would not be detrimental to the best interests of the child. It does not establish a presumption for or against joint custody. The paramount factor for custody of the child is the child's health, safety, and welfare. (Keith R. v. Superior Court (2009) 174 Cal.App.4th 1047, 1055, 96 Cal.Rptr.3d 298 (Keith R.); §§ 3020, subd. (a); 3040, subd. (b).)

To rebut the presumption, Omar had to show only that, by a preponderance of the evidence, joint or sole custody to him would not be detrimental to A.'s best interest. (Jason P. v. Danielle S. (2017) 9 Cal.App.5th 1000, 1026, 1032, fn. 22, 215 Cal.Rptr.3d 542 (Jason P.); Celia S., supra, 3 Cal.App.5th at p. 662, 207 Cal.Rptr.3d 756.) The legal presumption is not, as S.Y. asserts, "that a parent who has committed an act of domestic violence should not be awarded sole or joint legal or physical custody of a child." Omar's burden was only to persuade the court his custody would not be detrimental to A.'s best interest. (§ 3044, subd. (a); see Jason P., at pp. 1026, 1031, fn. 22, 215 Cal.Rptr.3d 542.) The determination of custody is not to reward or punish the parents for their past conduct, but to determine what is currently in the best interests of the child. (In re Marriage of LaMusga (2004) 32 Cal.4th 1072, 1094, 12 Cal.Rptr.3d 356, 88 P.3d 81 (LaMusga); Keith R., supra, 174 Cal.App.4th at p. 1055, 96 Cal.Rptr.3d 298.)

The trial court specifically considered the section 3044 presumption and found that Omar rebutted that presumption.

Section 3044, subdivision (b), sets forth seven factors that the court must consider when determining if the presumption was rebutted.⁴ The factors must be considered, but they are not mandatory requirements for rebuttal of the presumption. "[A]lthough section 3044, subdivision (b) requires the court to consider the factors it lists, it does not require the court to find they all have been satisfied in order to find the presumption rebutted." (Jason P., supra, 9 Cal.App.5th at p. 1032, fn. 23, 215 Cal.Rptr.3d 542.) In Jaime G. v. H.L. (2018) 25 Cal.App.5th 794, 236 Cal.Rptr.3d 209 (Jaime G.), the appellate court concluded that the trial court had to discuss each of the seven factors in its statement of reasons to provide meaningful review. (Id. at p. 805, 236 Cal.Rptr.3d 209.) We agree that the trial court must consider the statutory factors and provide a statement of reasons explaining the basis of its finding. (See § 3011, subd. (e)(1).)⁵ We disagree with Jaime G. to the extent it states that each factor must be specifically stated in the statement of reasons. (See Jaime G ., at pp. 805–807, 809, 236 Cal.Rptr.3d 209.) Sometimes, as here, certain factors are not in play. The trial court need only provide sufficient reasons to permit meaningful appellate review. (In re Marriage of Williams (2001) 88 Cal.App.4th 808, 815, 105 Cal.Rptr.2d 923 (Williams).) The trial court did so here.

Mother's central claim of error is that the trial court improperly applied section 3044. To repeat, section 3044 creates a rebuttable presumption against awarding custody to a parent who has committed domestic violence. When a trial court decides the evidence does indeed rebut this presumption, the statute requires the court to state the reasons for this decision. This statement of reasons must be "in writing or on the record." (§ 3011, subd. (e)(1).)

This "in writing or on the record" requirement is most reasonably interpreted to require specific mention of each of the seven section 3044 factors. (See § 3044, subd. (b)(1) - (b)(7).)

We review de novo questions of statutory construction. In doing so, we must ascertain the intent of lawmakers so as to effectuate the statute's purpose. (E.g., Apple Inc. v. Superior Court (2013) 56 Cal.4th 128, 135, 151 Cal.Rptr.3d 841, 292 P.3d 883.)

The purpose of the rebuttable presumption statute is to move family courts, in making custody determinations, to consider properly and to give heavier weight to the existence of domestic violence. (E.g., Sen. Com. on Judiciary, Analysis of Assem. Bill 840 (1999-2000 Reg. Sess.) July 13, 1999.)

By enacting the seven factors in the rebuttable presumption statute, the Legislature created a mandatory checklist for family courts. Mandatory checklists can improve professional decisionmaking for professionals as diverse as surgeons and pilots. (See, e.g., Atul Gawande, The Checklist Manifesto: How To Get Things Right (2009) pp. 32-47, 114-157, 175-182, 187-193.)

[...]

Mother's counsel then asked the court to "walk through the factors of the ... [section] 3044 and tell me your findings for each factor."

The court agreed to do so.

The court began with section 3044, subdivision (b)(1), which the court said was the primary factor in this case: the best interest of the child

As the court was responding to counsel's request, however, counsel again interrupted the court.

This interruption prompted the court to state "this hearing is over because you continue to interrupt." The court ended the hearing without further argument from counsel.

The trial court has many options for coping with intransigent counsel. The court

[236 Cal.Rptr.3d 220]

can conclude oral argument and then can state its specific findings on the record. (Cf. ALI Principles, supra, com. b, pp. 97-98 ["The most straightforward method for complying with the requirement of written findings is an opinion or memorandum decision issued by the decisionmaker, ordinarily a judge in a judicial proceeding. That is not, however, the exclusive method for compliance. In some jurisdictions trial judges may dictate findings to a court reporter whose transcript of them is then included in the court's case file without charge to the parties, and without regard to whether a more complete transcript of the proceedings is later prepared. Such a system satisfies the requirement of written findings imposed by these Principles. It does so because it requires the decisionmaker to articulate the specific factual findings relied upon to justify departure from the rule, and it produces an accessible record for study and for appellate review of whether the findings satisfy the substantive standard required for exceptions to the rule."].)

If the court opts to end the hearing before completing a record statement of the seven section 3044 factors, however, the statute requires the court's statement of reasons about these seven specific factors to be completed in writing. (See § 3011, subd. (e)(1).)

We reverse and remand for the family court to hold a new hearing and to provide this statement of specific reasons.

The first factor to be considered in determining rebuttal of the presumption is the best interest of the child, without using the preference for frequent and continuing contact with both parents to rebut the presumption of detriment. (§ 3044, subd. (b)(1).)⁶ The best interest of the child is always the overriding goal, and when there has been domestic abuse, the health, safety, and welfare of the child is the controlling factor. (§ 3020, subd. (c).) The section 3044 presumption does not change that test and does not limit the evidence cognizable by the court. (Keith R., supra, 174 Cal.App.4th at pp. 1054–1055, 96 Cal.Rptr.3d 298 ; § 3020, subd. (c); § 3011.)⁷ The trial court's focus, and our focus on appeal, is the safety of A., through the lens of Omar's demonstrated violence toward S.Y. The trial court said, "And so given that the family

[29 Cal.App.5th 336]

members are around, I don't have any fears for [A.'s] safety." The trial court's ruling was supported by substantial evidence. S.Y. has presented no substantial evidence that Omar's legal and physical custody put A. at risk for his safety, and welfare.

Critically, S.Y. testified that she had no concerns about what was happening during visits between Omar and A. The court stated, "[S.Y.] doesn't appear to have any concerns about father's assistance with things like the doctor, which means ... that father can contribute to the child's well-being by participating in doctor and school appointments." There was testimony of only one incident when Omar was physically violent toward A. Omar slapped A. and pushed him into the wall because A. had thrown a plastic food bowl at A's grandmother. The trial court was concerned about this, admonished Omar to use no corporal punishment, and ordered him to finish his parenting class. But the court also applauded Omar's attendance at the parenting class and found that he had shown a willingness to learn. Although S.Y. had filed a Child Welfare Services (CWS) report that Omar had emotionally abused A., CWS closed this referral after investigation.

S.Y.'s greatest concern seemed to be about Omar smoking in front of A. Her counsel said that S.Y. was "mostly concerned about having [Omar's] sister supervise because of the prior incident of allowing smoking around the child." The trial court ordered Omar not to smoke in A.'s presence, and Omar agreed never to do so. S.Y. was also worried about having Omar's sister supervise Omar's visitation with A. because she had seen her use corporal punishment on her own children. The court also ordered, and Omar agreed, to not use corporal punishment on A. Notably, S.Y. did not mention any abuse of A. by Omar, except for the one incident after A. threw a bowl at his grandmother. S.Y. would

[240 Cal.Rptr.3d 148]

certainly have testified to any other abuse of A. by Omar if such abuse had occurred.

In addition to finding no risk of harm to A. while in Omar's custody, the trial court also relied on Omar's interactions with A., which were relevant to the rebuttal of the presumption of detriment. The trial court stated, based on visitation reports, that, "[Omar] has been attentive and does understand who his son is, which is what I'm looking for." A. was attached to his father and enjoyed spending time with him. Substantial evidence supported this finding. A professional visitation supervisor reported that A. was comfortable

[29 Cal.App.5th 337]

when S.Y. left and Omar appeared. Omar's parenting style including teaching and structuring properly. Omar played with A. They laughed together. In addition, Omar's sister submitted descriptions of A.'s interaction with Omar, reporting that Omar played with A., corrected him appropriately, read to him, taught him English, and cared for A. by feeding him and changing his diapers. A. repeatedly said he wanted to play with his cousins from Omar's family.

In sum, without considering the statutory preference for frequent and continuing contact with both parents, the substantial evidence of Omar's demonstrated actions and relationship with A. rebutted the presumption that his custody would be detrimental to A.'s best interest.

The trial court stated that S.Y.'s withholding of A. from Omar for several months supported its finding that Omar had overcome the presumption of detriment to the best interest of the child. S.Y. claims that this reliance was improper because the trial court impermissibly relied on the preference for frequent and continuing contact with both parents. We disagree. The court did not mention the presumption for frequent and continuing contact with both parents as a basis for rebutting the presumption. The court's ruling was grounded on the specific facts of this case, not on the general statutory preference for continuing contact.

The trial court could reasonably conclude that S.Y.'s withholding of A. from Omar was relevant to determining if awarding custody to Omar would be detrimental to A.'s best interest. S.Y.'s prevention of A. from having contact with his father reflected a lack of understanding of common general parenting best practices and A.'s best interest, as well as her inability to understand the orders of the court at the restraining order hearing.

Further, section 3044, subdivision (b)(1) did not prevent the court from considering A.'s need for a meaningful relationship with his father. (See Keith R., supra, 174 Cal.App.4th at p. 1056, 96 Cal.Rptr.3d 298 ["while Father may have lost his ability to cite [the statutory preference in attempting to overcome the section 3044 presumption], Daughter certainly did not lose her right to have a meaningful relationship with both parents"].) A.'s interactions with Omar were positive. In this regard, S.Y.'s prevention of Omar from seeing A. for an extended period of time disrupted, and was damaging to, the good relationship between A. and Omar, which was important for A. as long as he was safe in Omar's presence. (Id. at p. 1057, 96 Cal.Rptr.3d 298.) Although the court could not rely on the statutory preference for continuing contact with both parents, the facts

[29 Cal.App.5th 338]

describing the nature and quality of the child's relationship with his parents were relevant to determining the child's best interest and if the abusive parent had rebutted the presumption that his custody was detrimental to that interest. The Keith R. court stated that information relevant

[240 Cal.Rptr.3d 149]

to the best interests of the child, in overcoming the section 3044 presumption, "includes evidence about the nature of Father's relationship with Daughter, his ability and willingness to care for her, the extent, if any, to which he poses a risk of physical and emotional abuse, his receptivity to being a ‘friendly parent,’ and Daughter's needs for more than marginalized parental relationships." (Ibid.) These considerations were relevant to the best interest of the child even when the court does not rely on the statutory preference for continuing contact with both parents. (Id. at pp. 1056–1057, 96 Cal.Rptr.3d 298.)

In stating the bases for rebuttal of the presumption, the trial court said that Omar was more fluent in English than S.Y. and found his greater fluency to be an advantage for "navigation through the American medical and educational system." It was error to use language fluency to rebut the presumption of detriment arising from domestic violence as it has no relation to A.'s safety or the impact of prior domestic violence on him. The error does not require reversal or remand, however, because there was sufficient other evidence supporting the court's finding that Omar had rebutted the presumption of detriment with respect to both legal and physical custody.

A court abuses its discretion when it relies on a factor that is not relevant to the child's best interest when making a determination of custody, and when it applies improper criteria or makes incorrect legal assumptions. (

[29 Cal.App.5th 339]

Fajota, supra, 230 Cal.App.4th at p. 1497, 179 Cal.Rptr.3d 569.) Abuses of discretion have been found when a court based a custody decision on the race of a custodial parent's second spouse (Palmore v. Sidoti (1984) 466 U.S. 429, 431, 434, 104 S.Ct. 1879, 80 L.Ed.2d 421 ); on a presumption that a single working parent could not provide adequate care for a child (Burchard v. Garay (1986) 42 Cal.3d 531, 540, 229 Cal.Rptr. 800, 724 P.2d 486 ); or on the relative economic position of parties (Id. at p. 541, 229 Cal.Rptr. 800, 724 P.2d 486; In re Marriage of Fingert (1990) 221 Cal.App.3d 1575, 1581, 271 Cal.Rptr. 389); on a physical disability (In re Marriage of Carney (1979) 24 Cal.3d 725, 728, 157 Cal.Rptr. 383, 598 P.2d 36); on religious belief (In re Marriage of Murga (1980) 103 Cal.App.3d 498, 504–505, 163 Cal.Rptr. 79); or on sexual orientation (Nadler v. Superior Court (1967) 255 Cal.App.2d 523, 525, 63 Cal.Rptr. 352).

We expand this list by adding English fluency as an improper factor in

[240 Cal.Rptr.3d 150]

considering a child's best interest in the absence of facts showing actual harm due to language. California has demonstrated in other contexts a public policy prohibiting decisions being made on the basis of language fluency when not relevant to the issue. (See Gov. Code, § 11135 [prohibiting discrimination based on "ethnic group identification," defined by regulation (Cal. Code Regs., tit. 2, § 11161, subd. (b) ) to include linguistic characteristics]; Gov. Code, § 68560, subd. (e) ["The Legislature recognizes that the number of non-English-speaking persons in California is increasing, and recognizes the need to provide equal justice under the law to all California citizens and residents and to provide for their special needs in their relations with the judicial and administrative law system"].) Language fluency might be relevant when there has been a factual finding that lack of fluency is likely to or has resulted in detriment to the child's best interest. (See Burchard v. Garay, supra, 42 Cal.3d at p. 540, 229 Cal.Rptr. 800, 724 P.2d 486 ["Any actual deficiency in care ... would of course be a proper consideration in deciding custody."].) For example, detriment could be shown by a parent who repeatedly doses a child incorrectly with medications due to inability to read the directions. There was no such finding here.

We further note that the trial court was not motivated by discriminatory intent in this case,⁸ which could, by itself, demonstrate an abuse of discretion. Consideration of language proficiency can be discriminatory, and thus improper, when it is used with the intent to discriminate based on race, ethnicity or national origin. (Hernandez v. New York (1991) 500 U.S. 352, 362, 371, 111 S.Ct. 1859, 114 L.Ed.2d 395 (plur. opn., Kennedy, J.); see also in

[29 Cal.App.5th 340]

Castro v. State of California (1970) 2 Cal.3d 223, 231, 85 Cal.Rptr. 20, 466 P.2d 244 [overturning statute requiring that citizens be literate in English to vote, in part because "fear and hatred played a significant role" in Legislature's enactment of requirement].)

The trial court abused its discretion because it used an improper factor in determining custody. (Fajota, supra, 230 Cal.App.4th at p. 1497, 179 Cal.Rptr.3d 569.) Omar's greater English fluency was not relevant to the best interest of A., much less to his safety and to the domestic violence presumed detriment. In the particular circumstances of this case, however, we find that English fluency was not a primary factor in the trial court's determination that Omar had rebutted the presumption of detriment. The trial court mentioned Omar's fluency in the context of contact with doctors and educators, and S.Y. had no objection to or concerns about Omar's participation in A.'s health care. S.Y. was not deprived of custody due to her language.

We find no miscarriage of justice in this case despite the trial court's error. Substantial evidence supported the court's finding that Omar rebutted the presumption of detriment even without consideration of language. The primary factors for rebutting the presumption arising from domestic abuse are the health, safety, and welfare of the child. (§ 3020, subd. (c).)

CWL argues that the appellate courts "consistently misapply the presumption in domestic violence cases," because they do not require that the batterer's treatment program and parenting class be completed. But it is the courts that provide guidance in interpreting statutes through application of the statute in specific cases. (American Coatings Assn. v. South Coast Air Quality Management Dist. (2012) 54 Cal.4th 446, 462, 142 Cal.Rptr.3d 581, 278 P.3d 838 ["[T]he proper interpretation of a statute is ultimately the court's responsibility."].) We follow the guidance of the courts and the clear language of the statute in finding no requirement that a batterer's treatment program and parenting classes must be completed in every case in order to rebut the presumption of detriment.

In sum, a trial court must consider completion of a batterer's treatment program and parenting classes when determining if the section 3044 presumption has been rebutted, but neither attendance at nor completion of those two classes are required by the statute. The trial court found that Omar had rebutted the presumption of detriment even without completion of those classes. Omar's current active, age-appropriate interactions with A. were far more relevant than completion of classes in determining if awarding joint custody to Omar would be detrimental to A.'s best interest. The trial court did not abuse its discretion in finding that Omar had rebutted the presumption of detriment with respect to parenting classes and batterer's treatment program.

[29 Cal.App.5th 344]

(Fajota, supra, 230 Cal.App.4th at p. 1497, 179 Cal.Rptr.3d 569 [standard is abuse of discretion]; Heidi S., supra, 1 Cal.App.5th at p. 1163, 205 Cal.Rptr.3d 335 [reversal warranted only if court's decision was arbitrary or capricious].)

[...]

S.Y. asserts that Omar continued to harass or threaten her, a form of domestic violence. The incidents she cites, however, do not seem to rise to domestic violence as defined in section 3044, subdivision (c),¹¹ which includes threatening or harassing for which a court may issue an ex parte order to protect the safety of family members. A court would not likely issue a restraining order based on the evidence S.Y. presented. S.Y. alleges that Omar threatened to sue her for enrolling A. in preschool, and that, in the words of her attorney, he used the court order as a "weapon" to control S.Y. In the incident supporting the latter allegation, according to S.Y.'s attorney, Omar told S.Y. that he was keeping A. for an additional five hours the next day to make up for time missed when A. was on vacation with S.Y., and Omar refused to transport A. to S.Y.'s, claiming his actions were in accordance with the trial court's order. The trial court chastised the parties for their continued lack of cooperation but did not find additional domestic violence. In any event, A. was not privy to those communications between S.Y. and

[29 Cal.App.5th 345]

Omar. (Cf. Rybolt v. Riley (2018) 20 Cal.App.5th 864, 870–871, 878, 229 Cal.Rptr.3d 576 [father continued to harass mother in child's presence, causing stress to child].) S.Y. and the ACLU also discuss a batterer's ability to control a victim with limited English ability. But S.Y. now lives apart from Omar and is attending English classes. The threats and harassment that S.Y. alleged were not in the presence of A. and did not put his health, safety, and welfare at risk.

[...]

The trial court understood and explicitly applied the presumption created by section 3044. The purpose of the section 3044 presumption is to protect the health, safety, and welfare of the child, not to punish the child and/or perpetrator for past crimes. (LaMusga, supra, 32 Cal.4th at p. 1094, 12 Cal.Rptr.3d 356, 88 P.3d 81.) Substantial evidence supports the court's findings that A. was not at risk in Omar's custody and that the section 3044 presumption of detriment had been rebutted. We find that despite the court's error in relying on English fluency, the trial court did not otherwise abuse its discretion in awarding joint physical and legal custody to Omar. (Fajota, supra, 230 Cal.App.4th at p. 1497, 179 Cal.Rptr.3d 569; Heidi S., supra, 1 Cal.App.5th at p. 1163, 205 Cal.Rptr.3d 335.)

(5) The section 3044 presumption, however, does not change the best interest test, nor supplant other Family Code provisions governing custody proceedings. This presumption may be overcome by a preponderance of the evidence showing that it is in the child's best interest to grant joint or sole custody to the offending parent. (§ 3044, subd. (b)(1).) Nor does the statute establish a presumption for or against joint custody; again, the paramount factor is the child's health, safety and welfare. (§§ 3020, subd. (a), 3040, subd. (b).) And where the section 3044 presumption has been rebutted, there is no statutory bar against an award of joint or sole custody to a parent who was the subject of the order.⁵

This is particularly important in move-away cases, which are among the most serious decisions a family court is called upon to make. Because an out-of-state relocation will deprive one parent of the ability to have frequent and continuing contact with the children, the competing claims must be considered calmly and dispassionately, and only after the parties have been afforded the opportunity to be "meaningfully heard." (In re Marriage of Seagondollar (2006) 139 Cal.App.4th 1116, 1119-1120 [43 Cal.Rptr.3d 575] (Seagondollar).)

[174 Cal.App.4th 1056]

(6) The January 27 move-away order terminated the custody trial without affording Father an opportunity to meaningfully rebut the section 3044 presumption. The court focused upon one of the listed statutory factors in rebutting the presumption: whether he had completed the 52-week batterer's program. This was a physical impossibility because only 32 weeks had elapsed since the court directed him to attend. Nonetheless, in concluding the custody proceedings on January 27, the court found "that Father has not met his burden as to [section] 3044."⁶

There are important policy reasons why domestic violence orders should not be treated as the functional equivalent of final judicial custody determinations. Domestic violence orders often must issue quickly and in highly charged situations. The focus understandably is on protection and prevention, particularly where the evidence concerning prior domestic abuse centers on the relationship between current or former spouses. Treating domestic violence orders as de facto final custody determinations would unnecessarily escalate the issues at stake, ignore essential factors (such as the children's best interest) and impose added costs and delays. It also may heighten the temptation to misuse domestic violence orders for tactical reasons.

It is true that Father, given the findings accompanying the domestic violence order, cannot rely on the statutory preference for "frequent and continuing contact" with both parents. (§§ 3020, subd. (b), 3044, subd. (b)(1).)⁷ But while Father may have lost his ability to cite this statute, Daughter certainly did not lose her right to have a meaningful relationship with both parents. The minor child's best interests must remain at the forefront of the family court's considerations on custody in determining whether the section 3044 presumption has been rebutted.

[174 Cal.App.4th 1057]

III

(7) A peremptory writ is proper to resolve this purely legal dispute in an area where the issues of law are well settled. Father prayed for a peremptory writ, and Mother asserted no objection in her 42-page response. (Code Civ. Proc., § 1008; Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1240 [82 Cal.Rptr.2d 85, 970 P.2d 872].) There is a particular need to accelerate the writ process in child custody disputes where children grow up quickly and have immediate needs. Father's entitlement to relief from the erroneous changed circumstance standard is so obvious that plenary consideration of the issues is unnecessary. (Id. at p. 1241.) Accordingly, we will grant the petition for writ of mandate in the first instance.

A final word about the proceedings on remand, which require a new trial on permanent custody and move-away. It is particularly critical that Father, as the party bearing the burden of persuasion under the section 3044 presumption, have the opportunity to introduce evidence pertinent to the best interests of the child. This includes evidence about the nature of Father's relationship with Daughter, his ability and willingness to care for her, the extent, if any, to which he poses a risk of physical and emotional abuse, his receptivity to being a "friendly parent," and Daughter's needs for more than marginalized parental relationships. Before reaching any final custody decision, the court should conduct a detailed review of the evidence presented at trial and carefully weigh all of the relevant factors required by section 3044.

Although the trial court's May 6, 2010, order did not make any express finding under section 3044 that Mother had perpetrated domestic violence

[194 Cal.App.4th 28]

against Child within the previous five years, it referred to such domestic violence, stating: “The abuse to [Child] by [Mother] was clearly a huge event and it changed custody to [Father].” ¹³ However, there is nothing in the record showing the court considered the section 3044 rebuttable presumption and/or found that presumption had been rebutted by Mother.

C

Father initially asserts the section 3044 presumption should be deemed conclusive, and not merely rebuttable, in this case because Mother pleaded guilty to battery of Child. However, he does not cite any case or other authority that supports his position. On the contrary, although Keith R. did not involve a criminal conviction, it nevertheless supports an interpretation that the section 3044 presumption is rebuttable and may be overcome by the offending parent, regardless of whether the act of domestic violence resulted in a criminal conviction. Furthermore, we are not persuaded by his argument that we should interpret the section 3044 presumption as conclusive in cases involving criminal convictions, despite the express language of section 3044 making it only rebuttable. Accordingly, we are not persuaded by Father's assertion that Mother's criminal conviction of battery against Child should result in a conclusive presumption that she should not obtain sole or joint legal or physical custody of Child for a period of five years.

Nevertheless, on remand of this matter, the trial court should expressly find whether Mother perpetrated an act of domestic violence under section 3044 and, if so, whether section 3044's presumption has been rebutted by Mother. (Cf. Keith R. v. Superior Court, supra, 174 Cal.App.4th at p. 1057, 96 Cal.Rptr.3d 298.) “Before reaching any [decision on Father's move-away motion], the court should conduct a detailed review of the evidence presented at trial and carefully weigh all of the relevant factors required by section 3044.” (Ibid.) Furthermore, in the event the court finds Mother perpetrated an act of domestic violence under section 3044 but concludes Mother has overcome its presumption, it nevertheless should consider [123 Cal.Rptr.3d 142]Mother's act of domestic violence against Child, together with all of the LaMusga and other relevant factors, in determining whether it is in Child's best interests to grant Father's motion to move away with Child to Washington or to change the established custody arrangement (e.g., grant Mother primary physical custody).¹⁴