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 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.
And the failure to make the findings was prejudicial error. But the court’s analysis on this point is underwhelming. And it seems to run afoul of the Supreme Court’s F.P. v. Monier holding from 2017 that missing findings are not structural error, and real prejudice has to be shown. On the record here, it appears the father easily could have rebutted all of the section 3044 factors.
On remand, I suspect the family court will simply make the missing findings to support to same 50/50 custody result.