Filed 4/4/23 Renee A. v. Robert A. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified
for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
RENEE A., B322245
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No.
v. 18WHPT00142)
ROBERT A., ORDER MODIFYING
OPINION
Defendant and Respondent.
[NO CHANGE IN
JUDGMENT]
THE COURT:
It is ordered that the opinion filed herein on March 9, 2023, be
modified as follows:
On page 8, in the first full paragraph, after the second sentence,
we delete the citations, beginning “(See Celia S., supra, 3 Cal.App.5th at
pp. 663–664 . . .” in their entirety, and the following citations are
inserted in their place:
1
(See Celia S., supra, 3 Cal.App.5th at pp. 663–664
[if section 3044 applies, maintaining a 50-50
custody arrangement is an abuse of discretion
unless the presumption has been applied and
rebutted]; § 3044, subds. (b)(2) [listing completion of
a batterer’s treatment program as a factor
supporting rebuttal, not an exception to the
presumption’s application], (c) [the presumption is
triggered when “[a] person is found by the court to
have . . . engaged in behavior
involving. . . harassing . . . or disturbing the peace
of another”]; Fajota, supra, 230 Cal.App.4th at
p. 1498 [the trial court is prohibited from
“‘“call[ing]. . . into play” the presumption contained
in section 3044 only when the court believes it is
appropriate’”].)
There is no change in the judgment.
____________________________________________________________
ASHMANN-GERST, Acting P. J. CHAVEZ, J. HOFFSTADT, J.
2
Filed 3/9/23 Renee A. v. Robert A. CA2/2 (unmodified opinion)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
RENEE A., B322245
Plaintiff and Appellant, (Los Angeles County
Super. Ct.
v. No. 18WHPT00142)
ROBERT A.,
Defendant and Respondent.
APPEAL from an order of the Superior Court of
Los Angeles County. Maria May J. Santos, Judge. Reversed and
remanded.
Family Violence Appellate Project, Cory Hernandez,
Shuray Ghorishi, Jennafer Dorfman Wagner, Erin C. Smith;
Sidley Austin LLP, David R. Carpenter, Sean A. Commons, and
Nicole M. Baade for Plaintiff and Appellant.
No appearance for Defendant and Respondent.
1
Plaintiff and appellant Renee A. (Renee) appeals from an
order granting her ex-boyfriend, defendant and respondent
Robert A. (Robert), joint physical and legal custody of their minor
son despite finding that Robert had committed acts of domestic
violence against her.1 Renee contends that the trial court failed
to apply the rebuttable presumption set forth in Family Code
section 30442 that it is not in a child’s best interest to award joint
legal and/or physical custody to a parent who has been found to
have committed domestic violence against his coparent. Renee
also challenges the trial court’s failure to consider her request for
child support.
We reverse the custody order and remand the matter to the
trial court to apply the mandatory presumption set forth in
section 3044 and to consider Renee’s request for child support
pursuant to section 6341.
FACTS AND PROCEDURAL BACKGROUND
I. The Family
Renee and Robert were in a seven-year relationship that
ended in 2018 (although they continued to live together until
2021). They share one child, R.A. (born May 2012).
1 Because the parties have requested that we refrain from
using their last names, we refer to them by their first names. No
disrespect is intended.
2 All further statutory references are to the Family Code
unless otherwise indicated.
2
II. The Custody Order
In July 2018, Renee petitioned the family court to
establish a parental relationship between her and Robert.3
In September and October of 2021, Renee filed two requests
for a Domestic Violence Restraining Order (DVRO) against
Robert, alleging that he had engaged in a campaign of
harassment against her. Her first request was dismissed without
prejudice on procedural grounds; the second was denied after a
hearing on its merits, with the trial court concluding that Renee
had not sufficiently established harassment meriting a
permanent restraining order.
At the conclusion of the hearing on the second DVRO
request, the trial court issued a temporary custody order
establishing joint legal custody of R.A., but giving “primary
physical custody” to Renee. The trial court directed the parents
to communicate with one another only through Talking Parents,
an on-line coparenting tool.
Robert subsequently filed for joint physical custody of R.A.,
arguing that the family “ha[d] always lived together” and that
R.A. “ha[d] a well-established relationship with both” parents.
Renee opposed the motion, reiterating her concerns about
Robert’s conduct towards her and the effect it was starting to
have on their son. She provided corroborating letters from third
parties, as well as Talking Parents messages demonstrating that
Robert was misusing the app to continue harassing her.
3 Neither parent was represented by counsel at any of the
following proceedings.
3
On December 15, 2021, Robert’s custody request proceeded
to a hearing. The trial court admonished Robert for misusing
Talking Parents, but ultimately concluded that Renee “ha[d]n’t
presented anything that would cause me to believe that it’s not in
[R.A.]’s best interest to do some kind of 50-50 [custody]
arrangement.” Accordingly, the trial court issued a custody order
granting joint physical and legal custody of R.A., with Renee and
Robert trading physical custody every two to three days (i.e., a 2-
2-3 custody plan).
III. The DVRO
In March 2022, Renee applied for another DVRO alleging
ongoing abuse, harassment, and stalking. Robert opposed her
request, and asked for sole legal and physical custody of R.A.
At the April 5, 2022 hearing, Renee provided evidence that
Robert consistently sent her lewd, racist, and threatening
messages, both over Talking Parents and through their 10-year-
old son’s personal cell phone.4 She also presented a 56-second-
long video of an incident where Robert had physically confronted
her when she approached R.A. after his baseball practice to say
goodbye. The trial court appeared disturbed by the video,
admonishing Robert for “[g]etting in [Renee’s] face in the video. I
could see you were shaking. You were shaking in that video. All
unnecessary . . . [b]ut you were so upset. I could tell how angry
you were at her.”
The trial court ultimately concluded that Robert’s conduct
constituted unlawful harassment, and granted a two-year DVRO
4 Because neither the content nor the sufficiency of these
messages is at issue in this appeal, we need not repeat them
here. Suffice to say, they are utterly reprehensible.
4
against him.5 The court mandated anger management and
batterer’s intervention programs for Robert, explaining that it
could not lawfully give Robert visitation rights unless he
completed these programs.
Although Renee’s request for a DVRO explicitly included
requests for sole legal and physical custody of R.A., the trial court
issued a new custody order maintaining the preexisting joint
legal and physical custody arrangement. At the hearing, the
court expressly stated that it would not apply the statutory
presumption against awarding joint custody to a parent who
commits domestic violence against his coparent. (§ 3044, subd.
(a).) Instead, the court “f[ound] that there’s an exception to the
[section] 3044 presumption because these parties have been
operating on a 2-2-3 schedule; I’m having [Robert] enroll in the
batterer’s intervention program; and that the harassment that
[Renee] alleges I believe is harassment by way mostly of
messaging and confrontation, verbal confrontation.” The court
did not address Renee’s request for child support.
Renee timely appealed.6
5 The DVRO protects only Renee and her child by another
father, not R.A.
6 Robert did not file a respondent’s brief. Consequently, we
will decide the appeal on the record, Renee’s opening brief, and
her oral argument. (Cal. Rules of Court, rule 8.220(a)(2).)
5
DISCUSSION
I. Custody
Renee argues that the trial court failed to comply with the
provisions of section 3044, which entitle her to a rebuttable
presumption against continued joint custody.7
A. Applicable Law
When deciding a DVRO petition, a trial court has discretion
also to make any necessary or proper order for custody of a child.
(§ 3022; Celia S. v. Hugo H. (2016) 3 Cal.App.5th 655, 661
(Celia S.).) The guiding principle for the court in issuing any
custody or visitation order is that the order must be in the child’s
best interest. (Ibid.)
“[S]ection 3044 establishes a rebuttable presumption that
awarding physical or legal custody to a parent who has
committed domestic violence is detrimental to a child’s best
interest.” (Celia S., supra, 3 Cal.App.5th at p. 661.) That statute
provides that “[u]pon 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
7 On February 9, 2023, Renee submitted a letter informing
us that the trial court recently entered a new, temporary custody
order after Robert was found to have violated the DVRO. She
does not argue that the order renders her appeal in this case
moot, and she did not submit the order for our review. In
general, we do not look at postjudgment development when
reviewing an appeal and when mootness is not an issue. (In re
Zeth S. (2003) 31 Cal.4th 396, 405 [“It has long been the general
rule and understanding that ‘an appeal reviews the correctness of
a judgment as of the time of its rendition, upon a record of
matters which were before the trial court for its consideration’”].)
Absent any argument that we should deviate from this general
rule, we decline to do so here.
6
child . . . , there is a rebuttable presumption that an award of
. . . joint physical or legal custody of a child to [the] 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.” (§ 3044, subd. (a).)
The presumption contained in section 3044 is mandatory
and a court must apply it when a finding of domestic violence has
been made. (In re Marriage of Fajota (2014) 230 Cal.App.4th
1487, 1498 (Fajota).)
B. Standard of Review
We review the trial court’s issuance of a custody order
under the abuse of discretion standard. (Ellis v. Lyons (2016)
2 Cal.App.5th 404, 415.) “A family law court abuses its discretion
if it applies improper criteria or makes incorrect legal
assumptions. [Citations.]” (Ibid.)
C. Analysis
The trial court in this case found that Robert committed
acts of domestic violence against Renee (warranting a two-year
restraining order protecting her from him), but awarded Robert
joint legal custody of their child.
The trial court did not apply the rebuttable presumption
provided in section 3044 when considering the operative custody
order. Instead, the court identified three supposed exceptions to
the statutory presumption: (1) the existing 2-2-3 custody plan;
(2) the trial court’s simultaneous order mandating Robert’s
participation in a batterer’s intervention program; and (3) the
fact that Robert’s harassment, though sufficient to justify issuing
a two-year restraining order, was somehow insufficient to trigger
section 3044.
7
None of these are valid, as there are no exceptions to the
mandatory presumption contained in section 3044. (Fajota,
supra, 230 Cal.App.4th at p. 1498.) And, we note that every
supposed exception identified by the trial court is expressly
contradicted by existing law, including by the plain language of
the statute. (See Celia S., supra, 3 Cal.App.5th at pp. 663–664 [if
section 3044 applies, maintaining a 50-50 custody arrangement is
an abuse of discretion unless the presumption has been applied
and rebutted]; §§ 3044, subds. (b)(2) [listing completion of a
batterer’s treatment program as a factor supporting rebuttal, not
an exception to the presumption’s application], (c) [the
presumption is triggered when “‘a person is found by the court to
have intentionally or recklessly . . . engaged in behavior involving
. . . harassment . . . or disturbing the peace of another’”]; Fajota,
supra, 230 Cal.App.4th at p. 1498 [the trial court is prohibited
from “‘“call[ing]. . . into play’ the presumption contained in
section 3044 only when the court believes it is appropriate’”].)
Accordingly, the trial court abused its discretion by
awarding Robert joint legal custody without applying the
required statutory presumption. (Fajota, supra, 230 Cal.App.4th
at p. 1500.)
II. Child Support
Renee also argues that the trial court failed to consider her
request for child support.
A. Applicable Law and Standard of Review
A petitioner in a proceeding under the Domestic Violence
Prevention Act, including DVRO hearings, may request child
support if he or she has custody of the child. (§ 6341, subd. (a).)
“When determining whether to make any orders under this
subdivision, the court shall consider whether failure to make any
8
of these orders may jeopardize the safety of the petitioner and the
children for whom child support is requested, including safety
concerns related to the financial needs of the petitioner and the
children.” (Ibid.)
We review the court’s implicit denial of child support for
abuse of discretion. (In re Marriage of Chandler (1997)
60 Cal.App.4th 124, 128.)
B. Analysis
Although Renee requested child support as part of her
successful DVRO request, the trial court did not address the issue
of child support at the hearing or in its minute order, effectively
denying the request.8 There is no indication that the trial court
considered “whether failure to make [a child support] order[] may
[have] jeopardize[d] the safety of [Renee] [or the child] for whom
child support is requested.” (§ 6341, subd. (a).) Its apparent
failure to comply with this statutory duty constitutes an abuse of
discretion. (Platypus Wear, Inc. v. Goldberg (2008)
166 Cal.App.4th 772, 782 [where the trial court exercises
discretion the law does not provide, it abuses its discretion].)
8 Renee’s failure to raise this issue at the hearing, as an
unrepresented litigant in a DVRO proceeding, is not necessarily
fatal. (Gonzalez v. Munoz (2007) 156 Cal.App.4th 413, 423
[recognizing that judges in family court are “necessarily expected
to play a far more active role” during Domestic Violence
Protection Act proceedings, “in light of the vulnerability of the
targeted population (largely unrepresented women and their
minor children)”].)
9
DISPOSITION
The April 5, 2022, custody order granting Renee and Robert
joint legal and physical custody is reversed. The matter is
remanded to the trial court to apply the mandatory presumption
set forth in section 3044 and to consider Renee’s request for child
support pursuant to section 6341. Renee shall be awarded costs
on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____, Acting P. J.
ASHMANN-GERST
We concur:
,
J. CHAVEZ
,
J. HOFFSTADT
10