Thursday, September 10, 2026
Page 1
Court of Appeal:
Fitness-for-Custody Finding in Unrelated Case Is Irrelevant
San Diego Lawyer Overcame Statutory Presumption Against Him, Founded on His Acts of Domestic Violence, in One Proceeding but, Opinion Says, That Has No Bearing on Issue Involving a Different Child by Another Woman
By a MetNews Staff Writer
Div. One of the Fourth District Court of Appeal has reversed an order awarding a San Diego criminal defense attorney primary physical custody of his son, holding that a judge erred in basing the decision largely on the child’s expressed desires and without focusing on whether the father had rebutted the statutory presumption of unfitness on the part of a litigant who has committed a domestic battery.
The opinion was filed Aug. 18 and certified for publication on Tuesday. The father, Sammer Zakhour, was suspended from law practice on Aug. 21 based on noncompliance with spousal and child support orders, and his former wife, women’s law attorney Jessica Lehr, was placed on the same status for the identical reason on May 23.
At issue in the appeal was whether the presumption of unfitness under Family Code §3044 had been rebutted. The section provides, in part:
“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…, or against…[another] person…with whom the party has a relationship, 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.”
Different Proceeding
Zakhour was held in 2024 to have rebutted the presumption—but that finding came in litigation involving him and one Raquel Hand, with whom the lawyer had entered into a relationship in 2021, producing a daughter. The matter before the Court of Appeal related to the custody of a son, born in April 2016 to Zakhour and his then-wife, Lehr.
It was found in 2023 that Zakhour had participated in physical violence against Hand (and she against him, resulting in mutual restraining orders) but a judge ruled in 2024 that Zakhour had rebutted the §3044 presumption and awarded him joint legal custody of the girl, with Hand having primary physical custody.
Lehr argued on appeal that in the custody dispute between her and Zakhour, San Diego Superior Court Judge Terrie E. Roberts “erroneously declined to apply the mandatory presumption under section 3044 on the legally incorrect basis that Father had rebutted the presumption in a separate domestic violence restraining order proceeding involving a different victim and a different child in an unrelated custody dispute.”
She continued that as Roberts saw it, “res judicata or collateral estoppel doctrines prohibited application of Family Code section 3044,” but, the lawyer maintained:
“[S]ection 3044 applied as a matter of plain statutory language, and if not, it should have been abundantly clear to Judge Roberts none of the elements of res judicata or collateral estoppel were even close to being satisfied.”
Zakhour—noting Lehr’s misconduct in the litigation, which had led to the imposition of sanctions and a contempt finding—countered:
“The family court acted within its discretion in considering the prior rebuttal finding, and any omission of additional section 3044 findings was harmless because the record overwhelmingly supports the court’s determination that regardless of a past history of domestic violence from which Sammer had moved on, granting him primary custody was in [the child’s] best interest because of Jessica’s interference, noncompliance, and detrimental conduct. At most, a limited remand to the same judicial officer to enter express section 3044 findings to this effect, based on the existing evidentiary record, would be appropriate.”
The ex-husband contended that Lehr’s conduct was so reprehensible as to warrant dismissal of her appeal under the disentitlement doctrine. That stance was rejected by the appeals court, saying that “the extreme remedy of disentitlement does not apply in this case.”
Buchanan’s Opinion
Justice Martin Buchanan wrote for the appeals court in declaring that Roberts erred in not deciding, independently, whether the statutorily enumerated bases for rebutting the presumption had been shown.
He said that because the controversy between the former spouses “involved different children, different relationships, and different factual allegations” from those involved in the 2024 proceeding, “Father cannot establish the ‘identical issue’ requirement for purposes of issue preclusion,” a term which, he noted, is supplanting “collateral estoppel.”
The justice wrote:
“The question whether Father rebutted the section 3044 presumption in the separate case involving his child with Raquel H. is not identical to the question whether he rebutted the presumption as to his older child with a different mother in this case. Whether the presumption has been rebutted depends on the best interest of the particular child…, which may vary depending on the child’s age, relationship with the perpetrator, exposure to domestic violence, and other factors.”
Instructions on Remand
The opinion declares that the order giving the father joint legal custody and primary actual custody of the son is reversed “with directions to the trial court to conduct limited proceedings to apply section 3044, make the required statutory findings if it finds that Father has rebutted the presumption, and enter a new custody order,” specifying:
“The trial court may consider the evidence already presented and shall have the discretion to determine the scope and nature of any additional evidence necessary to make that determination.
“We offer no opinion on whether Father can rebut the section 3044 presumption, leaving that issue to be decided by the trial court in the first instance. On remand, the court should also consider appointment of counsel for the minor….”
Other issues were also addressed in the opinion.
The case is In re the Marriage of Jessica and Sammer Z., 2026 S.O.S. 2850.
2018 Convictions
On July 3, 2018, Zakhour was charged with six misdemeanors, five of them relating to conduct toward his then-romantic partner, Eleanor Clement (and a sixth alleging animal cruelty). He pled guilty on Sept. 18, 2018, to one count of inflicting corporal injury resulting in a traumatic condition upon a person with whom the defendant had a dating relationship and one count of battery upon such a person.
Buchanan said in a footnote:
“The section 3044 presumption does not apply to the domestic violence Father committed against Eleanor C., as his September 2018 conviction is outside the five-year period of Minor’s November 2024 custody trial….Nonetheless, the domestic violence involving Eleanor C. is relevant in determining Minor’s best interest, as the trial court also recognized.”
The State Bar brought disciplinary proceedings against the lawyer, asserting that the misdemeanors reflect moral turpitude. Zakhour’s case was diverted to the alternate discipline program, and a further status conference is ordered for Sept. 21.
Copyright 2026, Metropolitan News Company