Filed 2/18/22 Daniel R. v. Elizabeth N. CA2/5

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

DANIEL R.,

Petitioner and Appellant,

v.

ELIZABETH N.,

Respondent.

 B309235

 (Los Angeles County Super.

 Ct. No. 20STPT01442)

APPEAL from an order of the Superior Court of Los 

Angeles County, Alison MacKenzie, Judge. Affirmed. 

Jeff Dominic Price, under appointment by the Court of 

Appeal for Appellant.

No appearance by Respondent.

____________________________
2

The trial court issued orders granting Elizabeth N. 

(mother) a five-year domestic violence restraining order against

Daniel R. (father), sole custody of their three children, and child 

support in the amount of $3,763 per month.

1 The court limited 

father’s time with the children to two-hour monitored visits every 

two weeks. Father appeals from the trial court’s custody order, 

contending reversal is required due to procedural errors.2 We 

affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Father and mother have three children together. The 

children were 17, 6, and 5 years old at the time father and 

mother filed their respective petitions initiating the underlying

proceedings. 

1. Father Files a Petition to Determine Parentage

On June 22, 2020, father filed a petition to determine his

parental relationship with the children.

3 As part of his petition, 

1 Out of respect for their privacy interests, we do not name 

the children, and we identify the parents by their first names and 

last initial only. (Cal. Rules of Court, rule 8.90(b)(1).)

2 Although father observes that a domestic violence 

restraining order is appealable, he does not argue that order was 

improperly issued. Nor does he argue the court erred in limiting 

his visitation or in calculating or awarding child support.

3 Father and mother are not married. Father filed preprinted Judicial Council forms pursuant to the Uniform 

Parentage Act (Fam. Code, § 7600 et seq.), which “ ‘provides the 

framework by which California courts make paternity 

determinations. (§ 7610, subd. (b).)’ [Citation.]” (In re L.L.

(2017) 13 Cal.App.5th 1302, 1309–1310.) In her written filings
3

father sought visitation with the children every weekend from 

Friday after school to Sunday evening during the school year and 

alternate weeks during summer break. He also sought joint legal 

custody. He asserted mother had prevented him from seeing the 

children since the parents ended their 18-year relationship on 

March 15, 2020.

2. Mother Files a Petition for a Domestic Violence 

Restraining Order, Custody, Visitation, and Child

Support 

One week after father’s petition, mother filed a request for a

domestic violence restraining order, protecting her and the 

children from father’s harassment and abuse. Mother also 

sought child support and custody orders. She submitted a 

declaration describing domestic violence that began at the end of 

2012 and continued into 2020. During this time, father either hit 

or struck her with an object over 100 times. He also kicked her

and gave her a bloody nose. The children were present during 

some of these incidents. 

Mother described the most recent incident, which occurred

on February 29, 2020, at her parents’ home. Her parents were 

away for the weekend. Father and mother argued, and father hit

the left side of mother’s face with his open hand. He pulled her

up by her hair and pushed her head into the cushions of the 

couch so that she could not breathe. She suffered vision and 

hearing issues as a result of the beating.

and oral testimony, mother has consistently identified father as 

the children’s father, and that issue is not before us.

All further undesignated statutory references are to the 

Family Code.
4

In another incident occurring in 2015 or 2016, father 

pushed mother into a dresser in their bedroom, causing her to cut 

her forehead. The cut required five to seven stitches. In January 

2019, while the family was in their car, father hit mother in the 

mouth, causing it to bleed and swell. Mother’s declaration 

included photographs of her injuries. She also submitted text 

messages she sent to father regarding her injuries and begging 

him to stop the abuse. He did not regularly respond to mother’s 

entreaties but occasionally apologized for his actions. 

On the day mother filed her request, the court issued a 

temporary protective order protecting mother and her children. 

Mother’s domestic violence petition was later deemed related to

father’s parentage case, and the matters were assigned to the 

same department for hearing. 

Father did not directly deny the specific violent incidents 

mother described. In his written response, father asserted it was 

mother who initiated the domestic violence and he was unable to 

prevent the resulting altercations. He attempted to leave the 

house on February 29, 2020, the date of their last incident, but 

mother blocked the door. She assaulted him multiple times

before he defended himself, physically moved her, and left. 

Father explained mother has a history of alcohol abuse and 

committed acts of physical and verbal abuse against him. Father 

stated, “I defend myself and made the mistake of harming her in 

self-defense to calm the conflict. Our relationship is toxic and I 

decided to move out for the safety of our children and myself.” 

3. The Hearing on the Domestic Violence Restraining 

Order 

On August 17, and September 14, 2020, the court held a 

contested hearing on mother’s restraining order. Mother and 
5

father testified as to the incidents described in their declarations. 

The photographs and text messages were admitted into evidence. 

Mother explained she failed to report the prior domestic 

violence incidents because she was scared and also wanted the 

children to have a family. She explained she decided to file for a 

restraining order because she did not want the children to think 

domestic abuse was “okay.” 

Mother also testified she included the children in the 

request for restraining order because father spanked the children 

or flicked their ears. He once left a mark when he squeezed the 

six-year old’s shoulder. Mother stated the children have observed 

father hit mother at least 30 to 40 times. They pointed to bruises 

on mother’s body and said, “Daddy did that to you.” 

Father testified mother often grabbed his shirt, scratched 

him on the arm and the chest, and he believed she would harm 

him. He agreed to a restraining order protecting mother but 

argued there was no basis to include the children because he had 

not hurt them.4

At the end of the hearing on September 14, 2020, the trial 

court issued a five-year restraining order, finding mother had 

met her burden to demonstrate father engaged in an act of abuse 

under sections 6203 and 6320. The trial court found mother to be 

“entirely credible” and her testimony was supported by the text 

messages, photographs, and scars the court observed. The court 

found father “was entirely not credible,” lacked insight into the 

abuse, and continued to blame mother for his violent actions. 

The court determined the children were protected parties 

4 Father has apparently abandoned this argument on appeal. 
6

because, while they were not physically hit, they were present 

and lived in a house “infused” with abuse. 

The trial court continued the hearing to September 25, 

2020, for the purpose of considering custody, visitation, and child 

support issues. The date selected was the date originally set for 

hearing on father’s parentage petition. At the end of the hearing, 

the trial court granted mother sole legal and physical custody “for 

now” with the caveat that “that may change after the hearing on 

the 25th, but [the court] want[ed] to get you something in place 

for right now. . . .” At the prompting of mother’s counsel, the 

court cited to section 3044, found it applied to the case, and that 

“at this point” father had not rebutted the presumption that it 

was not in the children’s best interest for father to have joint or 

sole custody.5 The court ordered two hours of monitored 

visitation for father once every other week and ordered that he 

participate in a batterer intervention program.

The parties were scheduled to attend mediation on custody 

and other issues on September 18, 2020, but the record is silent 

on whether any mediation took place.6 

4. The Custody, Visitation, and Child Support Hearing

On September 25, 2020, at the scheduled custody, 

visitation, and child support hearing, father’s attorney informed 

5 Section 3044, subdivision (a) creates “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 . . . .”

6 In his opening brief, father alternately indicated the 

mediation occurred but was “meaningless” and that it did not 

occur. For our purposes, it is immaterial whether the parties 

participated in the scheduled mediation.
7

the court that father no longer wished to retain him. Father

confirmed those were his wishes, and the court relieved counsel. 

Father then requested a continuance to retain new counsel. He 

stated he would be “signing the paperwork” that day. The court 

denied the request because father had failed to demonstrate good 

cause for the continuance. The court advised father he could in 

the future seek modification of the court’s orders after he 

retained new counsel.

At the hearing, the parties first discussed father’s 

visitation, which the court ordered to remain monitored for two

hours every other week. Father did not request the court modify 

its previous order granting mother sole physical and legal 

custody and that order remained in place. 

The parties then turned to child support issues. Father

submitted an Income and Expense Statement indicating he was 

unemployed. On cross-examination, he admitted to running 

several restaurants but claimed he received no income from these 

operations, which had been affected by the pandemic. He 

acknowledged he had received substantial profits from his 

businesses in 2019. He also admitted he received $2,600 a month 

to take care of his parents. 

The trial court found father was not credible. Although he 

claimed he was unemployed, he admitted he continued to operate 

several businesses, including opening a new downtown 

restaurant in 2020. Using the information father provided from 

2019 and 2020, the trial court calculated father’s monthly income 

as $13,925. The court ordered monthly child support in the 

amount of $3,763. On appeal, father does not contend the trial 

court erred when it calculated his monthly income or the amount 

of child support ordered. 
8

Father timely appealed from the court’s custody order

issued on September 25, 2020.

DISCUSSION7

We begin our analysis by stating what father does not 

challenge on appeal: he does not challenge the court’s visitation 

order, the domestic violence restraining order, or the child 

support order. Nor is there any issue before us concerning

father’s original parentage petition. His appeal is limited to the 

custody order. 

Father argues that if he had been fully advised of the 

presumption created by section 3044 and its impact on 

subsequent custody orders, he would have tried harder or hired a 

better lawyer to dispute the finding that he perpetrated domestic 

violence against mother. Father thus faults the trial court for 

failing to provide him notice and a copy of section 3044 before the 

domestic violence finding, failing to consider mother’s alcohol 

abuse when it granted mother sole custody, and failing to grant 

him a continuance to hire new counsel. We conclude none of 

these claimed errors require reversal.

1. Procedural Errors Related to Section 3044

Father asserts the trial court failed to determine prior to 

issuing the custody order whether section 3044 applied. In a 

related argument, father complains that the court did not provide 

a copy of section 3044 to the parties as required under 

subdivision (h) of that section. 

7 Although mother requested, and this court granted, several 

extensions of time, she did not file a respondent’s brief. We 

therefore decide this case based on the record, father’s opening 

brief and father’s oral argument.
9

A. Section 3044

A custody award may only be made if it is in “the best 

interest of the child.” (§ 3040, subd. (d); In re Marriage of Brown 

& Yana (2006) 37 Cal.4th 947, 955.) “When determining the best 

interest of the child, relevant factors include the health, safety 

and welfare of the child, any history of abuse by one parent 

against the child or the other parent, and the nature and amount 

of contact with the parents. (§ 3011.)” (Montenegro v. Diaz

(2001) 26 Cal.4th 249, 255.)

The Legislature has declared that “the perpetration of child 

abuse or domestic violence in a household where a child resides is 

detrimental to the health, safety, and welfare of the child.”

(§ 3020, subd. (a).) Thus, “section 3044 establishes a rebuttable 

presumption that it is not in the child’s best interest to award 

joint or sole legal or physical custody to a parent who a court has 

found to have committed domestic violence against the other 

parent within the previous five years. (§ 3044, subds. (a), (d)(2).) 

The presumption can only be rebutted if the court finds both that 

the perpetrator of domestic violence has demonstrated it is in the 

child’s best interest to grant the perpetrator custody and the 

enumerated factors on balance support the legislative findings in 

section 3020. (§ 3044, subd. (b).) When a party in a custody

proceeding has alleged the other party has perpetrated domestic 

violence, the court is required to: (1) inform the parties of the 

existence of section 3044 and give them a copy of the section prior 

to custody mediation (§ 3044, subd. (h)); and (2) in an evidentiary 

hearing or trial in which custody orders are sought, determine 

whether section 3044 applies before issuing a custody order 

(§ 3044, subd. (g)).” (Noble v. Superior Court (2021)

71 Cal.App.5th 567, 571.)
10

B. Proceedings Below

The parties were ordered to attend mediation on 

September 18, 2020, “to discuss any disagreements about the 

custody and/or visitation of the child(ren).” Four days prior to the

scheduled mediation, at the time the court found father had 

perpetrated domestic violence against mother and granted her a 

five-year restraining order, the court advised father: “then with 

respect to the DV-140, the custody and visitation, there’s a 

presumption when I found that you committed at least one act of 

abuse which is what I have found that it’s not in the [children’s] 

best interest for you to have sole, or joint custody of them given 

what I’ve found.”8 Mother’s counsel then suggested, “So the court 

is making its finding under the Family Code that respondent 

inflicted domestic violence for purposes of child custody.” The 

court responded, “3044, yes, yes, yes. I do find that the Family 

Code 3044 applies in this case. At this point I don’t find that 

[father] has rebutted the presumption that it’s not in the 

[children’s] best interest for him to have sole or joint custody.” 

C. The Trial Court Timely Found Section 3044

Applied

Father first asserts the trial court failed to determine 

whether section 3044 applied prior to issuing its custody order, in 

violation of section 3044, subdivision (g). The record shows 

otherwise. At the hearing on September 14, 2020, the trial court 

cited to section 3044, found it applied, and advised father of the 

8 Courts typically use Judicial Council form DV-140 to issue 

custody and visitation orders. Here, the court issued DV-140 

after the September 14, 2020 hearing to grant legal and physical 

custody over all three children to mother. The court granted 

father supervised visitation. 
11

presumption. Father thus had notice of the presumption 11 days 

before the September 25, 2020 hearing on custody, visitation, and 

child support. We conclude the trial court complied with section 

3044. 

Father appears to confuse the court’s temporary order 

granting sole custody to mother “for now” with its final order

issued after the hearing on September 25, 2020. Father has 

presented no authority for the proposition that section 3044’s 

notice requirement applies in this setting. On the contrary, 

section 3044 contemplates a temporary custody order may issue

prior to a final determination of the applicability of section 3044:

If the court finds that “a continuance is necessary to determine 

whether this section applies, . . . the court may issue a temporary 

custody order for a reasonable period of time, provided the order 

complies with Sections 3011 and 3020.”

9 (§ 3044, subd. (g).)

D. Father Has Forfeited His Claim That the Trial 

Court Failed to Provide Father With a Copy of 

the Statute 

Father next asserts “the record reflects that the trial court 

never gave [father] a copy of [section] 3044.” We agree the 

statute requires delivery of a copy of the statute before the 

mediation date. Father, who was represented by counsel at the 

September 14, 2020 hearing, did not object when the court 

allegedly failed to provide a copy of the statute, before or after the 

court specifically cited to section 3044. Father has therefore 

forfeited this claim. (In re S.B. (2004) 32 Cal.4th 1287, 1293.)

9 We discuss section 3011 separately. Father makes no 

argument pertaining to section 3020.
12

Even if father did not forfeit the argument, any error was 

undoubtedly harmless. Father must show it is reasonably

probable he would have achieved a more favorable result in the 

absence of the error. (Code Civ. Proc., § 475; In re Marriage of 

Goddard (2004) 33 Cal.4th 49, 56 [“ ‘any error as to any matter of 

procedure’ is subject to harmless error analysis and must have 

resulted in a ‘miscarriage of justice’ in order for the judgment to 

be set aside”].)

Father contends he was prejudiced by the court’s failure to 

provide him with a copy of the statute because he was not given 

notice of the presumption, which led to his loss of custody and 

resulted in limited, monitored visitation with the children. We 

fail to see how the failure to receive a copy of the statute, if that 

were the case, led to his loss of custody. The trial court advised 

father of the presumption and cited the statute in open court at a 

hearing where father was represented by counsel. The failure to 

have a piece of paper did not contribute to loss of custody.10

10 Father contends in passing that the trial court violated 

(former) rule 5.19(a)(3) of the Los Angeles Superior Court Local 

Rules, which requires the parties seeking child custody or 

visitation orders to participate in court-connected mediation prior 

to appearing at a hearing or trial regarding the custody or 

visitation of their children. The court complied with this rule by 

setting the mediation for September 18, 2020, before the 

September 25, 2020 hearing on custody, visitation, and support. 

The record does not show whether a mediation took place, and 

father does not show prejudice from any non-compliance with the 

rule.
13

2. Father Forfeited His Section 3011 Argument

Father next contends the trial court failed to take into 

account mother’s alcoholism as required by section 3011 when it 

made its custody orders.11 Father forfeited this challenge to the 

court’s custody order because he failed to raise it below. (Doers v. 

Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184–185, fn. 1

(Doers).) At the September 25, 2020, final custody and support 

hearing, father did not seek sole or joint custody of the children, 

nor did he argue that the court should consider mother’s alcohol 

abuse as a factor in the ruling the court made that day.

12

Instead, the parties focused on visitation and amount of support.

11 A court must consider a parent’s alleged “habitual or 

continual abuse of alcohol” in making a determination of the best 

interests of the child in a custody proceeding. (§ 3011, subd. 

(a)(4).) The court must state its reasons when it makes an order 

for sole or joint custody in favor of the parent against whom the 

allegation has been made. (§ 3011, subd. (a)(5).)

12 Father contends he attempted to proffer evidence of

mother’s drinking at the domestic violence hearing to show she 

initiated certain incidents because she had been drinking. The 

trial court properly found that evidence was irrelevant to 

whether father perpetrated domestic violence. Father’s counsel 

did not argue the evidence was relevant to custody at the time of 

the proffer. 
14

3. The Trial Court Did Not Abuse Its Discretion in 

Denying Father a Continuance

Lastly, father contends the court erred when it denied his 

request for a continuance at the September 25, 2020 custody and 

child support hearing.13

We review a trial court’s order denying a continuance for 

an abuse of discretion. (Reales Investment, LLC v. Johnson

(2020) 55 Cal.App.5th 463, 468.) To warrant a continuance, the 

moving party must establish good cause. (Cal. Rules of Court, 

rule 3.1332(c).) Substitution of trial counsel may constitute good 

cause for a continuance, “but only where there is an affirmative 

showing that the substitution is required in the interests of 

justice[.]” (Id., rule 3.1332(c)(4); Lazarus v. Titmus, supra, 

64 Cal.App.4th at p. 1250.) Courts have long held, “ ‘Parties 

litigant have no absolute right to insist upon a change of counsel 

at the last moment before the time set for the commencement of 

the trial, where such change of counsel requires a continuance in 

order that the case may be properly prepared for trial.’ ” (County

of San Bernardino v. Doria Mining & Engineering Corp. (1977)

72 Cal.App.3d 776, 783–784; Agnew v. Parks (1963) 

219 Cal.App.2d 696, 701–702.)

Here, father decided to fire his attorney the day before the 

hearing, which was scheduled at the time father filed his 

parentage petition, three months before. His reason was that he 

believed his attorney was not prepared. He did not elaborate on 

13 As part of his argument, father claims he did not receive 

statutory notice that mother was seeking child support. Father 

failed to raise the issue of adequate notice at the time of the 

hearing, again forfeiting the issue. (Doers, supra, 23 Cal.3d at 

p. 185, fn. 1.) 
15

counsel’s claimed lack of preparation.

14 Father knew the hearing 

would cover custody, visitation, and child support issues. Having 

voluntarily relieved his attorney at this late date, father was not 

entitled to a continuance based solely on his status as a selfrepresented litigant. (Agnew v. Parks, supra, 219 Cal.2d at 

p. 702.) The trial court did not abuse its discretion when it 

denied the request for a continuance.

Father also asserts that, in ruling on the requested 

continuance, the trial court failed to consider any of the factors

listed in California Rules of Court, rule 3.1332.

15 Rule 3.1332 

does not require express findings and father has not cited any 

appellate authority for that proposition. We instead apply 

fundamental principles of appellate review to affirm the denial

order: “(1) a judgment is presumed correct; (2) all intendments 

and presumptions are indulged in favor of correctness; and (3) the 

appellant bears the burden of providing an adequate record 

14 Father merely stated, “There is inadequate representation 

on my side, and as I was getting closer and closer I see that this 

attorney that I hired was not going to be prepared, as he was last 

time, and I made the final decision yesterday as we were getting 

close that this guy was not going to be prepared at all, and he 

didn’t have his game plan.” 

15 California Rules of Court rule 3.332(d) requires the court to 

“consider all the facts and circumstances that are relevant to the 

determination” including whether there was any previous 

continuance, the length of the continuance requested, the 

prejudice that parties or witnesses will suffer as a result of the 

continuance and “[a]ny other fact or circumstance relevant to the 

fair determination of the motion or application.”
16

affirmatively proving error.” (Fladeboe v. American Isuzu Motors 

Inc. (2007) 150 Cal.App.4th 42, 58.)

DISPOSITION

The order is affirmed.

RUBIN, P. J.

WE CONCUR:

BAKER, J.

MOOR J.