1

Filed 4/4/23 Renee A. v. Robert A. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified 

for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for 

publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

RENEE A.,

Plaintiff and Appellant,

v.

ROBERT A.,

Defendant and Respondent.

 B322245

 (Los Angeles County

Super. Ct. No. 

18WHPT00142)

ORDER MODIFYING

OPINION

 [NO CHANGE IN 

 JUDGMENT]

THE COURT:

It is ordered that the opinion filed herein on March 9, 2023, be 

modified as follows:

On page 8, in the first full paragraph, after the second sentence,

we delete the citations, beginning “(See Celia S., supra, 3 Cal.App.5th at 

pp. 663–664 . . .” in their entirety, and the following citations are 

inserted in their place:
2

(See Celia S., supra, 3 Cal.App.5th at pp. 663–664 

[if section 3044 applies, maintaining a 50-50 

custody arrangement is an abuse of discretion 

unless the presumption has been applied and 

rebutted]; § 3044, subds. (b)(2) [listing completion of 

a batterer’s treatment program as a factor 

supporting rebuttal, not an exception to the 

presumption’s application], (c) [the presumption is 

triggered when “[a] person is found by the court to 

have . . . engaged in behavior 

involving. . . harassing . . . or disturbing the peace 

of another”]; Fajota, supra, 230 Cal.App.4th at 

p. 1498 [the trial court is prohibited from 

“‘“call[ing]. . . into play” the presumption contained 

in section 3044 only when the court believes it is 

appropriate’”].)

There is no change in the judgment.

____________________________________________________________

ASHMANN-GERST, Acting P. J. CHAVEZ, J. HOFFSTADT, J.
1

Filed 3/9/23 Renee A. v. Robert A. CA2/2 (unmodified opinion)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions

not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion

has not been certified for publication or ordered published for purposes ofrule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

SECOND APPELLATE DISTRICT

DIVISION TWO

RENEE A.,

Plaintiff and Appellant, 

v.

ROBERT A.,

Defendant and Respondent.

B322245

(Los Angeles County 

Super. Ct.

No. 18WHPT00142)

APPEAL from an order of the Superior Court of

Los Angeles County. Maria May J. Santos, Judge. Reversed and 

remanded.

Family Violence Appellate Project, Cory Hernandez,

Shuray Ghorishi, Jennafer Dorfman Wagner, Erin C. Smith; 

Sidley Austin LLP, David R. Carpenter, Sean A. Commons, and 

Nicole M. Baade for Plaintiff and Appellant.

No appearance for Defendant and Respondent.
2

Plaintiff and appellant Renee A. (Renee) appeals from an 

order granting her ex-boyfriend, defendant and respondent 

Robert A. (Robert), joint physical and legal custody of their minor 

son despite finding that Robert had committed acts of domestic 

violence against her.

1 Renee contends that the trial court failed 

to apply the rebuttable presumption set forth in Family Code 

section 30442 that it is not in a child’s best interest to award joint 

legal and/or physical custody to a parent who has been found to 

have committed domestic violence against his coparent. Renee 

also challenges the trial court’s failure to consider her request for 

child support.

We reverse the custody order and remand the matter to the

trial court to apply the mandatory presumption set forth in 

section 3044 and to consider Renee’s request for child support 

pursuant to section 6341.

FACTS AND PROCEDURAL BACKGROUND

I. The Family

Renee and Robert were in a seven-year relationship that 

ended in 2018 (although they continued to live together until 

2021). They share one child, R.A. (born May 2012).

1 Because the parties have requested that we refrain from 

using their last names, we refer to them by their first names. No 

disrespect is intended.

2 All further statutory references are to the Family Code 

unless otherwise indicated.
3

II. The Custody Order

In July 2018, Renee petitioned the family court to 

establish a parental relationship between her and Robert.

3

In September and October of 2021, Renee filed two requests 

for a Domestic Violence Restraining Order (DVRO) against 

Robert, alleging that he had engaged in a campaign of 

harassment against her. Her first request was dismissed without 

prejudice on procedural grounds; the second was denied after a 

hearing on its merits, with the trial court concluding that Renee 

had not sufficiently established harassment meriting a 

permanent restraining order.

At the conclusion of the hearing on the second DVRO

request, the trial court issued a temporary custody order 

establishing joint legal custody of R.A., but giving “primary 

physical custody” to Renee. The trial court directed the parents 

to communicate with one another only through Talking Parents, 

an on-line coparenting tool.

Robert subsequently filed for joint physical custody of R.A., 

arguing that the family “ha[d] always lived together” and that

R.A. “ha[d] a well-established relationship with both” parents. 

Renee opposed the motion, reiterating her concerns about 

Robert’s conduct towards her and the effect it was starting to 

have on their son. She provided corroborating letters from third 

parties, as well as Talking Parents messages demonstrating that 

Robert was misusing the app to continue harassing her.

3 Neither parent was represented by counsel at any of the 

following proceedings.
4

On December 15, 2021, Robert’s custody request proceeded 

to a hearing. The trial court admonished Robert for misusing 

Talking Parents, but ultimately concluded that Renee “ha[d]n’t 

presented anything that would cause me to believe that it’s not in 

[R.A.]’s best interest to do some kind of 50-50 [custody] 

arrangement.” Accordingly, the trial court issued a custody order 

granting joint physical and legal custody of R.A., with Renee and 

Robert trading physical custody every two to three days (i.e., a 2-

2-3 custody plan).

III. The DVRO

In March 2022, Renee applied for another DVRO alleging 

ongoing abuse, harassment, and stalking. Robert opposed her 

request, and asked for sole legal and physical custody of R.A.

At the April 5, 2022 hearing, Renee provided evidence that

Robert consistently sent her lewd, racist, and threatening 

messages, both over Talking Parents and through their 10-yearold son’s personal cell phone.

4 She also presented a 56-secondlong video of an incident where Robert had physically confronted 

her when she approached R.A. after his baseball practice to say 

goodbye. The trial court appeared disturbed by the video, 

admonishing Robert for “[g]etting in [Renee’s] face in the video. I 

could see you were shaking. You were shaking in that video. All 

unnecessary . . . [b]ut you were so upset. I could tell how angry 

you were at her.”

The trial court ultimately concluded that Robert’s conduct

constituted unlawful harassment, and granted a two-year DVRO

4 Because neither the content nor the sufficiency of these 

messages is at issue in this appeal, we need not repeat them 

here. Suffice to say, they are utterly reprehensible.
5

against him.5 The court mandated anger management and 

batterer’s intervention programs for Robert, explaining that it 

could not lawfully give Robert visitation rights unless he 

completed these programs.

Although Renee’s request for a DVRO explicitly included

requests for sole legal and physical custody of R.A., the trial court 

issued a new custody order maintaining the preexisting joint 

legal and physical custody arrangement. At the hearing, the 

court expressly stated that it would not apply the statutory 

presumption against awarding joint custody to a parent who 

commits domestic violence against his coparent. (§ 3044, subd. 

(a).) Instead, the court “f[ound] that there’s an exception to the 

[section] 3044 presumption because these parties have been 

operating on a 2-2-3 schedule; I’m having [Robert] enroll in the 

batterer’s intervention program; and that the harassment that 

[Renee] alleges I believe is harassment by way mostly of 

messaging and confrontation, verbal confrontation.” The court 

did not address Renee’s request for child support.

Renee timely appealed.

6

5 The DVRO protects only Renee and her child by another 

father, not R.A.

6 Robert did not file a respondent’s brief. Consequently, we 

will decide the appeal on the record, Renee’s opening brief, and 

her oral argument. (Cal. Rules of Court, rule 8.220(a)(2).)
6

I. Custody

DISCUSSION

Renee argues that the trial court failed to comply with the 

provisions of section 3044, which entitle her to a rebuttable 

presumption against continued joint custody.

7

A. Applicable Law

When deciding a DVRO petition, a trial court has discretion 

also to make any necessary or proper order for custody of a child. 

(§ 3022; Celia S. v. Hugo H. (2016) 3 Cal.App.5th 655, 661 

(Celia S.).) The guiding principle for the court in issuing any 

custody or visitation order is that the order must be in the child’s 

best interest. (Ibid.)

“[S]ection 3044 establishes a rebuttable presumption that

awarding physical or legal custody to a parent who has 

committed domestic violence is detrimental to a child’s best 

interest.” (Celia S., supra, 3 Cal.App.5th at p. 661.) That statute 

provides that “[u]pon 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

7 On February 9, 2023, Renee submitted a letter informing 

us that the trial court recently entered a new, temporary custody 

order after Robert was found to have violated the DVRO. She 

does not argue that the order renders her appeal in this case 

moot, and she did not submit the order for our review. In 

general, we do not look at postjudgment development when 

reviewing an appeal and when mootness is not an issue. (In re 

Zeth S. (2003) 31 Cal.4th 396, 405 [“It has long been the general 

rule and understanding that ‘an appeal reviews the correctness of 

a judgment as of the time of its rendition, upon a record of 

matters which were before the trial court for its consideration’”].) 

Absent any argument that we should deviate from this general 

rule, we decline to do so here.
7

child . . . , there is a rebuttable presumption that an award of

. . . joint physical or legal custody of a child to [the] person who 

has perpetrated domestic violence is detrimental to the best 

interest of the child, pursuant to Sections 3011 and 3020. This 

presumption may only be rebutted by a preponderance of the 

evidence.” (§ 3044, subd. (a).)

The presumption contained in section 3044 is mandatory

and a court must apply it when a finding of domestic violence has 

been made. (In re Marriage of Fajota (2014) 230 Cal.App.4th 

1487, 1498 (Fajota).)

B. Standard of Review

We review the trial court’s issuance of a custody order 

under the abuse of discretion standard. (Ellis v. Lyons (2016)

2 Cal.App.5th 404, 415.) “A family law court abuses its discretion 

if it applies improper criteria or makes incorrect legal 

assumptions. [Citations.]” (Ibid.)

C. Analysis

The trial court in this case found that Robert committed 

acts of domestic violence against Renee (warranting a two-year 

restraining order protecting her from him), but awarded Robert 

joint legal custody of their child.

The trial court did not apply the rebuttable presumption 

provided in section 3044 when considering the operative custody 

order. Instead, the court identified three supposed exceptions to 

the statutory presumption: (1) the existing 2-2-3 custody plan;

(2) the trial court’s simultaneous order mandating Robert’s 

participation in a batterer’s intervention program; and (3) the 

fact that Robert’s harassment, though sufficient to justify issuing 

a two-year restraining order, was somehow insufficient to trigger 

section 3044.
8

None of these are valid, as there are no exceptions to the 

mandatory presumption contained in section 3044. (Fajota, 

supra, 230 Cal.App.4th at p. 1498.) And, we note that every 

supposed exception identified by the trial court is expressly 

contradicted by existing law, including by the plain language of 

the statute. (See Celia S., supra, 3 Cal.App.5th at pp. 663–664 [if 

section 3044 applies, maintaining a 50-50 custody arrangement is 

an abuse of discretion unless the presumption has been applied 

and rebutted]; §§ 3044, subds. (b)(2) [listing completion of a 

batterer’s treatment program as a factor supporting rebuttal, not 

an exception to the presumption’s application], (c) [the 

presumption is triggered when “‘a person is found by the court to 

have intentionally or recklessly . . . engaged in behavior involving

. . . harassment . . . or disturbing the peace of another’”]; Fajota, 

supra, 230 Cal.App.4th at p. 1498 [the trial court is prohibited 

from “‘“call[ing]. . . into play’ the presumption contained in 

section 3044 only when the court believes it is appropriate’”].)

Accordingly, the trial court abused its discretion by

awarding Robert joint legal custody without applying the 

required statutory presumption. (Fajota, supra, 230 Cal.App.4th 

at p. 1500.)

II. Child Support

Renee also argues that the trial court failed to consider her 

request for child support.

A. Applicable Law and Standard of Review

A petitioner in a proceeding under the Domestic Violence 

Prevention Act, including DVRO hearings, may request child 

support if he or she has custody of the child. (§ 6341, subd. (a).) 

“When determining whether to make any orders under this 

subdivision, the court shall consider whether failure to make any
9

of these orders may jeopardize the safety of the petitioner and the 

children for whom child support is requested, including safety 

concerns related to the financial needs of the petitioner and the 

children.” (Ibid.)

We review the court’s implicit denial of child support for

abuse of discretion. (In re Marriage of Chandler (1997) 

60 Cal.App.4th 124, 128.)

B. Analysis

Although Renee requested child support as part of her 

successful DVRO request, the trial court did not address the issue 

of child support at the hearing or in its minute order, effectively 

denying the request.

8 There is no indication that the trial court 

considered “whether failure to make [a child support] order[] may 

[have] jeopardize[d] the safety of [Renee] [or the child] for whom 

child support is requested.” (§ 6341, subd. (a).) Its apparent 

failure to comply with this statutory duty constitutes an abuse of 

discretion. (Platypus Wear, Inc. v. Goldberg (2008)

166 Cal.App.4th 772, 782 [where the trial court exercises 

discretion the law does not provide, it abuses its discretion].)

8 Renee’s failure to raise this issue at the hearing, as an 

unrepresented litigant in a DVRO proceeding, is not necessarily 

fatal. (Gonzalez v. Munoz (2007) 156 Cal.App.4th 413, 423 

[recognizing that judges in family court are “necessarily expected 

to play a far more active role” during Domestic Violence 

Protection Act proceedings, “in light of the vulnerability of the 

targeted population (largely unrepresented women and their 

minor children)”].)
10

DISPOSITION

The April 5, 2022, custody order granting Renee and Robert 

joint legal and physical custody is reversed. The matter is 

remanded to the trial court to apply the mandatory presumption 

set forth in section 3044 and to consider Renee’s request for child 

support pursuant to section 6341. Renee shall be awarded costs 

on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_____, Acting P. J. 

ASHMANN-GERST

We concur:

,

J. CHAVEZ

,

J. HOFFSTADT