Mother and Father shared a romantic relationship for many years and never married, but had two children together, a son C (age 12) and a daughter J (age 6). Sadly, by 2014, their romantic relationship had completely ended. According to Mother, their relationship ended because of several acts of domestic violence against her by Father. However, they stipulated to a court order allowing both of them joint legal and physical custody of their two children. Basically, the children spent one week with one parent and the following week with the other parent (a 50/50 timesharing arrangement).

Sometime in January of 2015, Mother invited Father over to her house for dinner with the children. While she prepared the meal, J took a nap on the couch, C worked on his math homework at the dining room table, and Father joined J at the table and worked on his cell phone. Father received a phone call and left the table to answer it. J asked Mother for help with his homework, and Mother took Father’s seat at the table to help J. When Father returned, he told Mother to move, but she refused so she could continue to help J. Father became angry, grabbed mother by the hair and physically removed her from her chair. He then punched her. Mother demanded Father leave her home, and when he remained outside, she called the police. The police arrested Father. (This narrative of events is according to Mother. Father disputes them, and C and J gave police and social workers different versions of events.)

The next day, Mother filed a domestic violence restraining order against Father. A temporary order was granted, and the case was set for hearing. At the hearing, the court determined that Mother was a victim of domestic violence by Father, and issued a one-year restraining order against him. The judge also granted Mother sole legal and physical custody of the children under California Family Code Section 3044. However, instead of changing the 50/50 timeshare custody arrangement, the judge merely changed the title of the arrangement to Father’s visitation.

Mother appealed, believing the court should have changed the actual timeshare agreement itself.

The Appellate Court agreed with Mother.

Section 3044 of the California Family Code states: “…Upon a finding by the court that a party seeking custody of a child has perpetrated domestic violence against the other party seeking custody of the child or against the child or the child’s siblings within the previous five years, 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.”

The Appellate Court noted that the trial court found domestic violence by Father against Mother. Therefore, the trial court should have applied Section 3044 and shortened the amount of time Father spent with the children unless the trial court found it was in the best interests of the children to maintain the amount of time Father spent with them. Merely changing their parenting status from joint custody to visitation did not comply with Section 3044.

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