Tuesday September 27, 2016
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Fourth District Panel Says Visitation Order Skirted Domestic Violence Law
By a MetNews Staff Writer
A family law judge may not circumvent the statutory presumption against awarding joint custody to a perpetrator of domestic violence by having the child spend half his time with the offending parent and calling it “visitation,” the Fourth District Court of Appeal has ruled.
Div. Three Friday certified for publication its Aug. 26 opinion in a case in which it reversed Orange Superior Court Judge Thomas Howard’s ruling continuing a “50/50 timeshare arrangement” previously agreed upon between the parties, who were identified only as Hugh H. and Celia S.
The couple had a longtime relationship, but never married, and have two children. Celia S. testified that the relationship had been marred by domestic violence, and eventually ended because of it.
She sought assistance after a January 2015 incident in which, after being invited over for dinner with her and the children, Hugo H. got into an argument with her while she was helping her 12-year-old son with his homework. She said he grabbed her by the hair and punched her, leading her to call the police, who arrested him.
At a subsequent hearing on her request for a protective order, he claimed that he did nothing aggressive, and that Celia S. started the argument because she believed he was talking to other women on his cellphone while she was helping their son. He claimed that she lied to the police about being struck.
Howard concluded that Celia S. was more credible, found her to be a victim of domestic violence, and issued a one-year restraining order limiting Hugo H.’s contact with her to visitation issues. He awarded her sole legal and physical custody under Family Code §3044, but said he would review that order after the father completed a 52-week domestic violence intervention program.
He said he was going to leave the previous “timeshare” arrangement, under which the child alternated living with each parent weekly, in place, deleting only the provisions giving the father joint custody from the order to which the parties had previously agreed.
On appeal, however, the court held that the judge abused his discretion by failing to apply the statute’s mandatory presumption. Upon finding that the father had perpetrated the act of violence, the trial judge had no right to award joint physical custody unless he found that it would be in the children’s best interests to do so, Justice Richard Aronson wrote for the panel.
Hugo H. “did not event attempt to make that showing,” the justice said, and the trial judge impliedly found to the contrary when he said the father would have to complete the intervention program before the judge could find that he rebutted the presumption.
While it is not completely clear where the dividing line between “liberal visitation” and “joint physical custody” lies, the justice acknowledged, “the trial court necessarily awarded Hugo joint physical custody regardless of the label the court attached to the arrangement.”
On remand, Aronson wrote, the trial court may award visitation, but must comply with statutes requiring that, in cases involving domestic violence, the court consider whether to require that visitation take place in the presence of a third party, or to suspend visitation or to deny it. The justice also noted that although the one-year restraining order has expired, the rebuttable presumption stemming from the finding of domestic violence remains applicable for five years.
The case is Celia S. v. Hugo H., 16 S.O.S. 4811.
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