Most findings in family court are left to the judge’s discretion. But not a custody order—at least, not once the judge has found that the parent has engaged in domestic violence. Even though the father’s only “domestic violence” was ringing up the mother’s employer, the court in Hutchins v. Hutchins (D4d1 Sept. 13, 2022 no. D078855) 2022 WL 4138735 (nonpub. opn.) held that the 50/50 custody order could not stand, because the family court failed to make written findings on the seven statutory factors. (Fam. Code, § 3044(b)(2).)
Here, the father kept calling the mother’s supervisors at the U.S. Navy, making allegations about family finances and emotional abuse. There was no physical abuse, but the family court found it was harassing and issued an domestic violence restraining order.
Eventually, the calls stopped. The court found that the father was not jeopardizing the mother’s safety. And so the restraining order was lifted.
When it came time for a custody award, the family court reiterated that the father had committed domestic violence in the past—the manipulative phone calls to the mother’s employer—but that the presumption under Family Code section 3044 was rebutted and so in the best interests of the children awarded custody 50/50. But the court did not make any of the written findings required under section 3044(b)(2).
By making a finding that the father had committed domestic violence, the trial court triggered the mandatory rebuttable presumption under section 3044 that awarding any child custody to the father would not be in the child’s best interests. (Ellis v. Lyons (2016) 2 Cal.App.5th 404, 415.)
Here, the family court acknowledged the presumption, and concluded that it was “rebutted.” But this was not enough. The trial court must undertake two steps before concluding that the presumption of section 3044 has been overcome.
First, the court must find that the parent who has perpetrated the domestic violence has demonstrated that it “is in the best interest of the child pursuant to Sections 3011 and 3020” to give the perpetrator sole or shared custody. (Id., subd. (b)(1).)12 The statute specifies that in making the requisite finding regarding the best interests of the children, the court is prohibited from relying on “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.” Second, the court must consider each enumerated factor contained in section 3044, subdivision (b)(2) and “find that the factors in subdivision (b), on balance,” weigh in favor of granting some amount of custody to the perpetrator in terms of protecting the child's health, safety, and welfare. (§ 3044, subd. (b).)
Importantly, section 3044 mandates that the trial court “make specific findings on each of the factors in subdivision (b).” (§ 3044, subd. (f)(1).) “If the court determines that the presumption ... has been overcome, the court shall state its reasons in writing or on the record as to why” the two-step requirement has been met. (Id., subd. (f)(2), italics added.) Thus, “[t]he statement of reasons must address all of the factors outlined in section 3044, subdivision (b). [Citations.]” (Abdelqader, supra, 76 Cal.App.5th at p. 196, italics added.)
(This blog discussed Abdelqader here.)
On appeal, the father argued that the family court’s failure to make the findings under section 3044 was harmless. That is, had the court made the findings, the court would have come to the same result.
The Court of Appeal disagreed. But the court did not point to any record evidence to suggest the section 3044 factors would have come out a different way. Specifically, the required factors under section 3044(b)(2) involve:
(A) whether the parent should complete a batterer's treatment program (but there was no battery here); (B) whether the parent should complete a program of alcohol or drug abuse counseling (but there were no references to substance abuse here); (C) whether the parent should complete a parenting class (but there were no references to inadequate parenting here); (D) whether the parent had satisfied conditions of probation or parole (but the father was not on probation or parole here); (E) whether the parent has complied with a restraining order (here, the father had complied); (F) whether the parent had committed further acts of domestic violence (other than the phone calls, there were no further acts); (G) whether the parent is a restrained person in possession of a firearm (there was no suggestion of that here).
But the court did not analyze prejudicial error of the missing findings by discussing the factors directly. Instead, the Court of Appeal found the missing findings were prejudicial in the abstract—almost as though it is structural error. (But see F.P. v. Monier (2017) 3 Cal.5th 1099 [absence of required findings is not structural error].) Here is how the court analyzed the prejudice of the missing findings:
“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.” (Jaime G., at p. 805, italics added, citing Sen. Com. on Judiciary, Analysis of Assem. Bill No. 840 (1999-2000 Reg. Sess.) July 13, 1999.) “Presumptions are used in this context because courts have historically failed to take sufficiently seriously evidence of domestic abuse. [Citation.] [¶] “Without such [pre]sumptions, it has been too easy for courts to ignore evidence of domestic abuse or to assume that it will not happen again. As with the limitations on consideration of the gender of a parent or child, presumptions function to counteract the proven tendency of some courts to make judgments based on ignorance or stereotypes.' ” (Jaime G., at p. 806, quoting Bartlett, Preference, Presumption, Predisposition, and Common Sense: From Traditional Custody Doctrines to the American Law Institute's Family Dissolution Project (2001) 36 Fam. L.Q. 11, 23.)
“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,” and although such checklists “can seem bothersome to experienced professionals,” the Legislature created a checklist in this context in order “to require family courts to give due weight to the issue of domestic violence.” (*Jaime G., supra*, 25 Cal.App.5th at p. 806, italics added.) In addition, the requirement of written findings or findings otherwise stated on the record was included to facilitate meaningful appellate review grounded in the “policies set forth in the governing law,” which is “essential to the creation of the body of precedent necessary for the system of rebuttable presumptions to produce consistent and predictable results.” (Ibid.)
The court went on to note that the lack of findings frustrates appellate review.
The issues the court considered in finding the omission of the required findings resulted in prejudice these were the same considerations the Supreme Court took up, and rejected, in F.P. v. Monier (2017) 3 Cal.5th 1099. Contrary to Hutchins here, the Supreme Court concluded that a trial court’s omission of required findings was not reversible per se, and that the omission would be reversible only if a different likely would have resulted. In the factual circumstances present in the opinion, that just does not appear to be the case here.
That seems particularly the case where the domestic violence is not based on physical violence or even threats of physical violence. True, the cases hold that “domestic violence” does not require actual physical violence, or even threats, and that abuse is enough, which can include merely disturbing the peace of another. (Phillips v. Campbell (2016) 2 Cal.App.5th 844, 852-853.) But at some point, that definition of “violence” gets rather vague and unlawyerly. And as relevant here, a finding of nonviolent harassment—by way of making whiny phone calls to the other spouse’s employer—does not have any obvious bearing on custody.
On remand, I suspect the family court will simply make the missing findings to support to same 50/50 custody result.
Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at firstname.lastname@example.org or (714) 641-1232.
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