Metropolitan News-Enterprise

 

Tuesday, March 22, 2022

 

Page 1

 

Court of Appeal:

Three-Days-a-Week ‘Visitation’ Amounts to Joint Legal Custody, Violating Presumption

Identity of Parties Ordered ‘Suppressed’ Though Their Names Appear in Public Record, Including Previously Issued Version of Opinion

 

By a MetNews Staff Writer

 

A judge who awarded sole legal and physical custody of a child to his mother, acting pursuant to a presumption in Family Code §3044 against joint custody to a parent who has committed acts of domestic violence, abused his discretion by granting “visitation” to the father from 4:30 p.m. on Tuesdays until 6:30 p.m. on Fridays, the First District Court of Appeal has held, declaring that this amounts to de facto joint custody.

Div. Two initially filed the opinion—which bore the caption, City and County of San Francisco, Petitioner, v. Hershel Hale, Jr., Respondent, Angelique McFarland, Appellanton Feb. 17, designating it as “not certified for publication.” The Association of Certified Family Law Specialists and the Family Violence Appellate Project and Bay Area Legal Aid each made a request for publication, and on March 9, McFarland, who had used her full name in the trial court and on appeal, asked that only her initials be used.

The Court of Appeal on Friday directed that the opinion be published and mandated: “All names in the opinion, including the caption of this opinion are ordered suppressed.”

Retired Presiding Justice J. Anthony Kline authored the opinion, as a pro tem associate justice. The profanity-laden opinion recites alleged abusive conduct on the part of the father.

Wording of Statute

At a custody hearing, San Francisco Superior Court Judge Victor H. Hwang applied §3044(a) which provides:

“Upon 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 child..., there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child....This presumption may only be rebutted by a preponderance of the evidence.”

Hwang found the presumption had not been rebutted but nonetheless ordered that the boy, D.H., be with his father three days out of the week. Kline wrote:

“The visitation schedule here, three days with father and four with mother, clearly amounted to joint physical custody. The court obviously did not make any finding that the section 3044 presumption was overcome, as it granted mother sole legal and physical custody pursuant to section 3044.”

Only by making such a finding, and doing so with a written explanation, as required by §3044, could Hwang have made the order that he did, Kline said.

Noncompliance With Statute

“The trial court simply stated that it believed its order was in D.H.’s best interest and ‘this is the schedule that the child has had for a number of years now,’ ” he recited. “We have no choice but to conclude the court failed to comply with section 3044.”

Kline specified:

“On remand, the court may award father visitation that does not amount to joint custody.”

The case is No. A161503.

Acting Presiding Justice James Richman signed the order certifying the opinion for publication and requiring that the parties be identified by initials, rather than names.

 

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