How Domestic Violence Affects Legal Presumptions

In partial reversal, the Second District holds that trial court erred by failing to apply Family Code, Section 3044 presumption against joint custody for parent who engaged in domestic violence and relying instead on Family Code, Section 3040 provision regarding a parent better able to share in denying mother's request for sole custody after Massachusetts trial court issues protective order against father following his physical altercation with his brother in law. 

Ellis v. Lyons 2 Cal. App 5th 404

July 14, 2016, ordered published August 11, 2016. 

In 2001, Crystal Lyons gave birth the Jonathan Ellis's child.  Crystal and Jonathan's relationship ended later that year and in 2002 he filed an action to establish paternity for his daughter.  in 2009, the parties stipulated to a judgment whereby they had joint legal and physical custody of their child, she would live most of the year with Crystal and her new husband in Massachusetts and Jonathan would have custody for 5 weeks each summer and on spring break and alternating winter breaks. 

in 2014, while the child was in Southern California visiting her father, he got into a fight with his brother in law.  The child was present when the fight started  but left the room hid in the bathroom and called 911.  When father and daughter later discussed the incident, the daughter yelled at him that he was overweight, had OCD, was antisocial and unemployed and not her "real father"  He threatened to slap her but later apologized and calmed down.  He did not hit her at any time.  During the rest of visit, they played together and watched TV. However, in a phone conversation with her mother, the child told her mother about the fight and claimed to be "really scared."  Hearing that, the mother told the daughter that she was concerned about her safety and that she would help her get out of there.  Crystal contacted her attorney and they tried to get a restraining order that was denied by the court.  She then later applied for a protective order in Massachusetts and the court granted a TRO.  Crystal and the daughter appeared in court and the father appeared through counsel.  After hearing evidence, the Massachusetts court issued a restraining order. The mother then filed a request to modify custody and visitation in California requesting sole legal and sole physical custody and supervised visitation for Dad. 

Mother argues that Family Code, Section 3044 presumption that an award of joint custody to a person who had perpetrated domestic violence is not in the child's best interest, should apply.  During three days of testimony, the trial court heard from the child and her paternal grandmother, reviewed records from Massachusetts, and expressed concerns about the jurisdiction of Massachusetts.  In findings and conclusions, the trial court really expressed doubt about whether the child was, in fact, afraid of Dad and expressed concerns that she was merely trying to cut visitation short to return to Massachusetts.  The trial court relied on the presumption in Family Code, Section 3044 regarding which parent is better able to allow frequent and continuing contact and denying Mother's request for a change in custody. 

Mother appealed. The Second district affirmed in part, reversed in part and remanded. 

The justices affirmed that the trial court erred in relying on Family Code, Section 3040 and instead should have focused on Family Code, Section 3044 and domestic violence.  The panel concluded that the court should have applied 3044 because the child witnessed the altercation and the Massachusetts court made a finding of domestic violence. 

As a footnote, the court indicated that Massachusetts is the only state not to have adopted UCCJEA and had jurisdiction to make orders regarding the restraining orders.  I do not think the same result would have happened in another state because they would have deferred to California in making any orders regarding custody and visitation.  Further, the court explains in another footnote that the child had expressed that she did not want to go to California in the first place and wanted to go to summer camp and do things with friends in Massachusetts instead of visiting her father.  They question whether the child was in fear of her father.  Claims of domestic violence and the child being afraid of her father should be fully investigated.  Obviously, the DV incident occurred and was not fabricated.  What the problem is-Was the child afraid? 

Again, I doubt the same result if the DV case was in another state with the UCCJEA.  Any other court would have deferred to CA because of the UCCJEA. 

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