Different Results Under the Family Code and Welfare & Institutions Code Regarding Domestic Violence

Mother [M] has two sons – half siblings – S1 born in 2012, and S2 born in 2014.   F1 is the father of S1.  M became involved with the Los Angeles County Department of Family and child Services [Department] in 2016, when S2’s Father [F2] was arrested for domestic violence.

In May of 2017, Department filed a dependency petition for both boys under Section 300 of the California Welfare and Institutions Code alleging both boys were subjected to the physical violence between M and F2.  At the hearing, the court ordered the boys be detained and placed in the care of M’s mother – their grandmother [G].

In June of 2017, M began Department services, but a month later she refused to speak with the Department without her attorney present.   F1 had told Department that he had an on-again-off-again relationship with M, and that she would hit herself and threaten to call the police when they argued.  According to F1, when M told F1 she was pregnant with his child, she told him to stay away because F2 had a problem with F1.  F1 was only allowed to see S1 when F2 was not around.

In September of 2017, M completed parental training, however, it was only a ten-week course, and not the 52-week course domestic violence batterer course Department wanted her to complete.  At the same time, G began accusing F1 of abusing S1 during F1’s visitation.  Department found the allegations to be false, and in November awarded custody of S1 to F1.  Both G and M were allowed monitored visitations with S1.

In early 2018, M petitioned to have custody of S1 returned to her.  Because M had not completed her 52-week parenting course, Department recommended the court deny her request.  The court did deny her request, but allowed her more monitored visitation with S1.

Before the six-month status review between F1 and S1, they had three conjoint counseling sessions with Department.  F1 stated that he could not co-parent with M, because she was controlling and would not follow court orders.  During M’s visits with Department, she said she was an “amazing mother” and that S1 was not safe at F1’s house.  (Department noted that M’s statements disputed F1’s, S1’s, and Department’s own social workers’ investigations and evaluations.)

In July of 2018, the court said it would terminate jurisdiction, but the parties would mediate custody and visitation. Noting Department recommended joint legal custody F1 argued before the court that under Family Code Section 3044, joint legal custody is presumptively not in a child’s best interest when there has been a history of domestic violence, and F1 requested sole physical and legal custody of S1.  The court was reluctant to exclude M from educational and healthcare decisions, given that she had been the parent closely involved in those decisions in the past.  Given M’s past role, together with the fact that all of the factual details about the domestic violence were in dispute and there were insufficient facts for application of the presumption, the court maintained its joint legal custody order and F1 appealed stating the court abused its discretion by relying on Welfare & institutions Code Section 388, and not the Family Code Section 3044.

The Appellate Court agreed with the trial court: “We conclude Family Code section 3044, and its rebuttable presumption against awarding sole or joint custody of a child to certain perpetrators of domestic violence, does not apply to dependency proceedings under section 300 et seq.  We also find the juvenile court’s decision to award joint legal custody was not an abuse of discretion, and so we affirm.”

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