Filed 7/31/18

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

JAIME G.,

Plaintiff and Respondent,

v.

H.L.,

Defendant and Appellant.

 B280569

 (Los Angeles County

 Super. Ct. No. BF057099)

APPEAL from orders of the Superior Court of Los Angeles 

County, Dean Hansell, Judge. Reversed and remanded.

Los Angeles Center for Law & Justice, Carmen McDonald, 

Sarah Reisman, Melissa Viramontes; Gibson, Dunn & Crutcher, 

Kahn A. Scolnick, Michael Holecek and Colby A. Davis for 

Defendant and Appellant.

No appearance for Plaintiff and Respondent.

____________________
2

A mother appeals from a child custody order. The family 

court ruled Father was a domestic abuser but then awarded child 

custody jointly to Father and Mother, with Father getting most of 

the visitation time. A statute applies to this situation. The 

Legislature passed this statute to move courts to give heavier 

weight to the existence of domestic violence. The statute requires 

family courts to make specific findings, in writing or on the 

record, about seven factors, including whether the perpetrator 

has successfully completed a batterer’s treatment program. The 

trial court was in the midst of stating its reasons on the record 

when the conduct of counsel terminated the hearing. Courts 

possess full authority to maintain orderly control of hearings. 

When oral statements on the record cannot be completed, 

however, the statute requires the trial court to “state its reasons 

in writing . . . .” (Family Code Section 3011, subd, (e)(1).) (All 

statutory citations are to the Family Code.) We reverse and 

remand for the family court to hold a new hearing that complies 

with this statutory requirement about specific findings on each of 

the seven statutory factors.
3

FACTUAL AND PROCEDURAL BACKGROUND

This child custody dispute over seven-year-old Matthew 

was between biological parents H.L. and Jaime G. There were 

three substantial court hearings.

A. The First Hearing

The first substantial hearing was on September 19, 2016. 

As a self-represented litigant, Father petitioned to establish a 

parental relationship. Neither Mother nor Father had a lawyer 

at this hearing. 

The court methodically proceeded through a comprehensive 

agenda. It first established parentage and jurisdiction. It 

queried the parents about living and working arrangements. 

Father lived in a house, sleeping in a bunk bed in a room with 

four others. Father and Matthew were in the top bed, while 

Father’s partner Clara slept below with her two children. Father 

had lived there for a year. He paid $500 in monthly rent and 

worked full time in shipping. Matthew attended an elementary 

school a 10-minute walk away. Father took Matthew to school 

and picked him up every day. 

The court asked Mother for similar information. She lived 

in a house with others; she was unsure who owned it. Mother 

shared her bedroom with her boyfriend. 
4

Mother and Father lived about 45 minutes apart. Father 

owned a car. Mother did not. 

Mother had three children besides Matthew, ages nine, 10, 

and 12. They were in Guatemala. Mother last saw her other 

children in 2007. 

The court tried to establish Mother’s employment situation. 

Mother was unemployed and claimed that, “due to the court 

appearances, I was laid off.” After Mother said she was not 

working “because of this court proceedings,” the court asked 

when she was last in court. Mother replied “I’ve never been. 

This is the first time.” The court, evidently puzzled by the 

contradiction, repeated the question. The court asked when 

Mother had last been to “any court,” and again Mother replied, 

“[n]o other time.”

The court asked how long Mother had lived at her current 

address. Mother said nearly three months. Before that, Mother 

reported living at a different address for two years, and before 

that for six months at a third address. Before the third address, 

she had lived at a fourth address for “like a year.” 

The court asked Mother why she had not seen Matthew for 

three months. Mother said she called about Matthew, but Father 

told her Matthew did not want to speak with her. Then one day 

Father “told me to come because the child was sick and when I 

arrived he gave me court documents and he pushed me, almost 
5

knocked me down. I was scratched up. And at that time I also 

called the police.” 

The court asked Father why he had not allowed Mother to 

see Matthew. Father’s responses were contrary to Mother’s: 

Father said, “She hasn’t called me at all.” Father said he learned 

Mother was high on drugs and had abandoned Matthew with a 

babysitter for three days, and so he went to Long Beach to get 

Matthew. Father said Mother would abandon Matthew while 

Mother and her boyfriend went in a car to smoke weed. Further, 

Mother would “go into the bathroom with a pipe all night.” 

The court asked Mother if she smoked marijuana in the 

house when Matthew was present. Mother denied smoking 

marijuana and then said, “When I was young, yes, many years 

ago I smoked marijuana.” 

The court examined school documents showing Matthew’s 

school attendance was good when Matthew was with Father. 

When Matthew was with Mother, however, the court found 

Matthew experienced “quite a high absence rate” at school. 

The court said that its concern was with the best interest of 

the child, and that Matthew should have regular and continuous 

contact with both parents. “Matthew is only seven. He is not 

going to be an adult for 11 more years. That’s a long time. And it 

will be critical for you both to get along with each other to co-
6

parent as much as you can with each other in order to make sure 

that Matthew has a good education.” 

The court then ordered legal custody (“that is who has 

responsibility for making decisions about Matthew’s well-being, 

his education, his health and so forth”) would be joint: shared 

equally between Mother and Father. The court ordered physical 

custody as follows. Matthew would remain with Father during 

the school week, but the court stated Mother must get regular 

access to Matthew. The situation was complicated because only 

Father had a car, and the parents lived 45 minutes apart. Most 

visitation thus would have to be on weekends because Matthew 

was in school during the week. The court gave Mother Saturday 

and Sunday visitation, with Father ordered to provide 

transportation. As for school holidays and other holidays, the 

court gave Mother more access to compensate for Father’s 

primary physical custody. The court ordered alternating weeks 

of custody during Matthew’s summer vacation. 

Following this hearing, Mother retained counsel, but 

Father did not.

B. The Second Hearing and Following Events

The second hearing was on November 9, 2016. Father 

again represented himself. Mother now had a lawyer, who 

objected she had not received service of a declaration Father was 
7

presenting to the court. The court continued the hearing to 

permit Mother to examine and to respond to Father’s declaration. 

This November hearing itself was not substantial, but

there were three written filings before and after it: Mother’s

request for a domestic violence restraining order, Father’s 

response to Mother’s request, and Mother’s counsel reply to 

Father’s declaration. 

These three documents detailed Mother and Father’s 

relationship with their son Matthew. In these filings, the parents 

continued to present sharply conflicting accounts, as follows.

In her request for a domestic violence restraining order, 

Mother described her injuries as “lost my balance, scrape on my 

chest.” 

In the attached declaration, Mother stated “I need a 

restraining order against [Father] because [Father] continues to 

berate me in front of our son, has scratched me across my chest, 

forcefully pushed me, physically removed our son from my home 

without returning him, has threatened me on multiple occasions 

to take our son to Guatemala.” 

Mother’s declaration recounted meeting Father in 

Guatemala in 2002. They lived together from then until 2011. 

Mother wrote the two separated “due to [Father’s] violent 

behavior towards me.” 
8

Mother wrote the most recent incident of Father’s abuse 

was on October 1, 2016, when Father drove erratically towards 

Mother and Matthew. Father berated Mother in front of 

Matthew. Mother repeated her charge that, on August 6, 2016, 

Father pushed her and scratched her chest. Mother claimed 

Father had a history of abusing her. 

Father responded to Mother’s filing on November 2, 2016. 

Father swore all of Mother’s allegations against him were “lies.” 

Father wrote he wanted sole custody of Matthew because Mother 

was using crystal methamphetamine. Mother told Father she 

was going to start treatment for her drug problem. Mother’s 

babysitter called Father to say that Mother left Matthew with the 

babysitter for three days, that Mother was high on drugs then,

and that Mother is “really high all the time.” Father met with 

Mother and told her, “you are going down the wrong path, you’re 

high right now, we will talk when you are better. [Mother] stays 

quiet and I leave.” 

Father denied trying to run Mother over, and denied 

hitting or pushing Mother. Father said Mother hit and scratched

him. He wrote that on August 7, 2016 Mother called police, who 

first handcuffed Father but then released him without arrest 

after interviewing both parents. Father claimed police told 

Mother to stay away from the general area of Father’s house. 
9

The police gave Father a business card with the officers’ names 

and instructed Father to call if Mother returned.

Father claimed the relationship with Mother ended in 2011 

because she was with another man. Father claimed Mother 

never sent money or called the couple’s three children in 

Guatemala, and Mother told people in the United States she has 

only one child: Matthew.

Father’s declaration claimed Mother became mentally 

unstable when high on drugs. Father described an episode where 

Mother left the house with Matthew in the car because Mother 

“was afraid that helicopters and police were searching for her and 

her friends.” Father ascribed this episode to Mother’s use of 

methamphetamine. 

Father submitted pictures of clothes and a book bag he 

bought for Matthew, as well as a photo of “some meth that is 

[Mother’s].” The photos include pictures of a young boy smiling 

and showing off clothes and a book bag. Father also attached a 

photo of Mother drinking a beer, as well as the “business card 

from the police officer who arrived at the altercation on 8/7/16.” 

Father submitted a Los Angeles Police Department business card 

listing two officers’ names. The back of the police card contains 

this writing: “ADV. TO COMPLETE CUSTODY PROCESS 

OVER CHILD IN COMMON.”
10

On November 22, 2016, Mother’s counsel filed a reply to 

Father’s declaration. This brief alleged Father was not 

complying with court orders because he was consistently late and 

sometimes did not drop Matthew off for visits at all. Mother 

denied using crystal methamphetamine and denied Father 

helped Mother with rent or food. Mother blamed Father for 

Matthew’s school absences, saying Father failed to drop Matthew 

off on Monday mornings. “It was difficult for me to take our son 

to school on a couple of occasions when I did not have a car as 

well.” Mother attached documents she claimed supported her 

side of the story. 

C. The Third Hearing

The third hearing was on December 2, 2016. The court 

showed conscientious familiarity with the parties’ filings by 

summarizing their written contentions. Mother then testified 

orally, describing how, when she tried to take Matthew with her, 

Father tried to get Matthew away from her. Father “pushed me 

and tried to knock me down to the floor, and he scratched me on 

my neck.” Mother called police, who came to the scene but did 

not arrest Father. Mother described a threat Father made to her, 

and her lawyer asked Mother whether she believed Father’s 

threat. Mother said that, “[h]onestly, I didn’t take it very 

seriously.” Counsel asked Mother if she thought Father would 
11

continue to abuse her without a restraining order. Mother said 

“[m]aybe not physically but verbally. Yes. And psychologically.” 

The court then heard from Father, who denied Mother’s 

charges of abuse and said Mother was lying. Father explained 

Mother was not getting Matthew appropriate medical care. 

Father had to take Matthew to a medical clinic because Mother 

repeatedly texted Father she would do it but she failed to follow 

through. After Father took Matthew to the clinic, Mother lacked

interest in Matthew’s medical condition.

The court granted the request for the domestic violence 

restraining order, with modifications, setting the term at 24 

months. 

Mother’s counsel cited the above-mentioned section 3044, 

noting it creates a presumption Mother should have sole custody 

of Matthew. The court agreed this presumption applied and it 

awarded sole physical and legal custody to Mother. The trial 

court also ruled Father was to have visitation rights as set forth 

in the court’s September 19, 2016 order. This order gave most of 

the visitation time to Father.

Mother’s counsel requested child support. After some 

discussion, Mother’s counsel asked to continue the child support 

issue to a future date. The court agreed. 

The parties then engaged over the terms of Father’s 

visitation. Mother’s counsel again cited section 3044. The trial 
12

judge remarked the September 19th hearing had been extensive 

and none of the evidence in the current hearing had changed 

what would be in Matthew’s best interest. 

Following this hearing, there were more filings.

On December 11, 2016, Mother’s counsel filed a motion for 

reconsideration of the court’s order. Father responded the next 

day, filing a new declaration denying Mother’s claims and 

asserting Mother was a liar and a poor parent, with attached 

exhibits. 

D. The Fourth Hearing

The fourth hearing was on January 13, 2017. The court 

ruled Mother’s request for reconsideration was untimely but the 

court reconsidered its order on the court’s own motion. 

In its reconsideration, the court emphasized its earlier 

determination “about Father’s suitability to be a good father and 

Mother’s much more limited suitability to be a good mother.” 

The court then tentatively modified its earlier order, but 

not in the way Mother requested. Instead of curtailing Father’s 

visitation schedule, the court altered Mother’s sole custody by 

specifying that physical and legal custody of Matthew would be 

joint. The court invited oral argument on its tentative ruling.

Mother’s counsel again cited the section 3044 presumption. 

The court responded, “I will look at [section] 3044 right now.” 
13

The court stated its ruling that Father was more suitable and 

stable than Mother. The court acknowledged it issued a domestic

violence restraining order but observed “the standard is not a 

very high standard.” The court remarked it had issued the order 

to address “relations between Mother and Father.” “And we have 

many situations where the parents just, you know, there are 

issues. There is a need to keep one parent away from the other 

and where they crossed over a line justifying the issuance of a 

DVRO [domestic violence restraining order].”

The court explained its visitation order “was based on the 

fact that Father is a good father to the children.” “I agree with 

[Mother’s counsel]. [Section] 3044 applies in this situation, but 

[section] 3044 doesn’t bar visitation. . . . But you still then can go 

on from there and determine whether [the section 3044 

presumption] can be overcome. [Section] 3044[, subdivision] (b), 

for example, talks about the factors . . . that one can take into 

consideration in overcoming a presumption with that. And here, 

the most important thing is to look who is the more suitable 

parent . . . , despite the issues in the DVRO, which this court 

granted, . . . [and] despite that Father remained the more 

appropriate parent, the better parent for the minor.” 

Mother’s counsel then argued Father “did not rebut the 

[section] 3044 presumption.” The court disagreed, repeating it 

had gone through a section 3044 analysis and that there was no 
14

reason to modify the court’s visitation order. Mother’s counsel 

interrupted the court, which again repeated that it had spent 

time with counsel “going through [section] 3044.” 

The court reiterated its deliberation about who was the 

more suitable parent, about which home was more stable, and 

which person was more attentive to Matthew’s educational and 

health care needs. The court said that Father’s home was much 

more stable and Father was more attentive to Matthew’s needs 

concerning education, stability, and having a safe and 

comfortable home. Mother’s home, the court concluded, was “less 

stable and was not able to provide those types of things.” 

Mother’s counsel then asked if the court had considered the 

Father’s domestic violence in rendering its decision. The court 

replied, “[i]ndeed the court did consider that [factor] about the 

domestic violence.” The court balanced that presumption against

the importance of a stable and safe home for Matthew. 

Mother’s counsel then asked the court to “walk through the 

factors of . . . [section] 3044 and tell me your findings for each 

factor.” The court agreed to do so. The court began with section 

3044, subdivision (b)(1), which the court said was the primary 

factor in this case: the best interest of the child. Because 

Mother’s counsel repeatedly interrupted the court, however, the 

court finally announced “this hearing is over because you 
15

continue to interrupt.” The court ended the hearing without 

further argument from counsel.

The court orally reiterated its ruling was based on section 

3044 and that the court was “taking into account the factors in 

[section] 3044[, subdivision (b)].” The court concluded “the 

presumption that in [section] 3044[, subdivision (a)] has been 

overcome in this situation by Father being the far better parent 

to raise the child than Mother.” 

The trial court’s January 13, 2017 minute order 

summarized the hearing. “The court, on its own 

motion, . . . modifies its order of December 2, 2016. The court 

awards the parties joint legal and joint physical custody of the 

minor child Matthew . . . . The court made its findings under . . . 

[section] 3044[, subdivision] (b) and discussed that it was 

required to consider the best interests of the minor in making 

custody and visitation orders. The court notes that trial is 

currently scheduled for February 23, 2017 at 8:30 a.m. . . . .” 

In sum, after reconsidering the situation, the family court 

gave the parents joint custody of their son but decided to retain

the visitation schedule to which Mother now objects.
16

THE STATUTE: SECTIONS 3044 AND 3011

For this appeal, two sections of the Family Code are key: 

sections 3044 and 3011. The text of these sections is vital.

A. Section 3044: A Rebuttable Presumption After a Domestic

Violence Finding

Subdivision (a) of section 3044 sets forth the rebuttable 

presumption. Subdivision (b) lists seven factors the court “shall”

consider when determining whether that presumption has been 

overcome. These seven factors are the “section 3044 factors.”

The relevant text of section 3044 is as follows:

“(a) Upon a finding by the court that a party seeking 

custody of a child has perpetrated domestic violence 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.

“(b) In determining whether the presumption set forth in 

subdivision (a) has been overcome, the court shall consider all of 

the following factors:
17

“(1) Whether the perpetrator of domestic violence has 

demonstrated that giving sole or joint physical or legal custody of 

a child to the perpetrator is in the best interest of the child. In 

determining the best interest of the child, the preference for 

frequent and continuing contact with both parents, as set forth in 

subdivision (b) of Section 3020, or with the noncustodial parent, 

as set forth in paragraph (1) of subdivision (a) of Section 3040, 

may not be used to rebut the presumption, in whole or in part.

“(2) Whether the perpetrator has successfully completed a 

batterer’s treatment program . . . .

“(3) Whether the perpetrator has successfully completed a 

program of alcohol or drug abuse counseling if the court 

determines that counseling is appropriate.

“(4) Whether the perpetrator has successfully completed a 

parenting class if the court determines the class to be 

appropriate.

“(5) Whether the perpetrator is on probation or parole, and 

whether he or she has complied with the terms and conditions of 

probation or parole.

“(6) Whether the perpetrator is restrained by a protective 

order or restraining order, and whether he or she has complied 

with its terms and conditions.
18

“(7) Whether the perpetrator of domestic violence has 

committed any further acts of domestic violence.” (§ 3044, 

subds. (a) & (b).)

B. Section 3011: A Requirement of a Written or Record

Statement of Reasons

Subdivision (e)(1) of section 3011 makes the following 

provision, to which we add emphasis.

“Where allegations about a parent pursuant to subdivision 

(b) [concerning abuse by one parent against another] . . . have 

been brought to the attention of the court in the current 

proceeding, and the court makes an order for sole or joint custody 

to that [allegedly abusive] parent, the court shall state its reasons 

in writing or on the record. . . .” (§ 3011, subd. (e)(1), italics 

added.)

DISCUSSION

We review custody and visitation orders for an abuse of 

discretion, and apply the substantial evidence standard to the 

trial court’s factual findings. (Celia S. v. Hugo H. (2016) 3 

Cal.App.5th 655, 662.) On issues of statutory interpretation, 

however, review is de novo.
19

Mother makes three arguments on appeal. We treat them 

in turn. 

A. The Family Court Must State its Specific Reasons on the

Record or in Writing

Mother’s central claim of error is that the trial court 

improperly applied section 3044. To repeat, section 3044 creates 

a rebuttable presumption against awarding custody to a parent 

who has committed domestic violence. When a trial court decides 

the evidence does indeed rebut this presumption, the statute 

requires the court to state the reasons for this decision. This 

statement of reasons must be “in writing or on the record.” 

(§ 3011, subd. (e)(1).)

This “in writing or on the record” requirement is most 

reasonably interpreted to require specific mention of each of the 

seven section 3044 factors. (See § 3044, subd. (b)(1) - (b)(7).) 

We review de novo questions of statutory construction. In 

doing so, we must ascertain the intent of lawmakers so as to 

effectuate the statute’s purpose. (E.g., Apple Inc. v. Superior 

Court (2013) 56 Cal.4th 128, 135.)

The purpose of the rebuttable presumption statute is to 

move family courts, in making custody determinations, to 

consider properly and to give heavier weight to the existence of 
20

domestic violence. (E.g., Sen. Com. on Judiciary, Analysis of

Assem. Bill 840 (1999-2000 Reg. Sess.) July 13, 1999.) 

By enacting the seven factors in the rebuttable 

presumption statute, the Legislature created a mandatory 

checklist for family courts. Mandatory checklists can improve 

professional decisionmaking for professionals as diverse as 

surgeons and pilots. (See, e.g., Atul Gawande, The Checklist 

Manifesto: How To Get Things Right (2009) pp. 32-47, 114-157, 

175-182, 187-193.)

A reporter for the American Law Institute’s family law 

project made this point about the need for written findings. “The 

[American Law Institute’s] Principles make presumptions about 

domestic abuse that are . . . instructive. They require a court to 

assume that if a parent . . . inflicted domestic abuse . . . , limits on 

the first parent’s access are necessary to protect the child or the 

other parent from harm. . . . Written findings are required to 

support any allocation of custodial or decision-making 

responsibility to a parent, which justify allocation in light of the 

assumed dangers of these behaviors.” (Katherine T. Bartlett, 

Preference, Presumption, Predisposition, and Common Sense: 

From Traditional Custody Doctrines to the American Law 

Institute’s Family Dissolution Project (2001) 36 Fam. L.Q. 11, 23.) 
21

Presumptions are used in this context because courts have 

historically failed to take sufficiently seriously evidence of 

domestic abuse. (Ibid.)

“Without such assumptions, it has been too easy for courts 

to ignore evidence of domestic abuse or to assume that it will not 

happen again. As with the limitations on consideration of the 

gender of a parent or child, presumptions function to counteract 

the proven tendency of some courts to make judgments based on 

ignorance or stereotypes.” (Ibid.)

Mandatory checklists can seem bothersome to experienced 

professionals but the Legislature’s intent was to require family 

courts to give due weight to the issue of domestic violence. The 

requirement that courts make specific findings “in writing or on 

the record” furthers this legislative goal. (Cf. American Law 

Institute, Principles of the Law of Family Dissolution: Analysis 

and Recommendations (2002) ch. 1, topic 3, § 1.02, com. a, p. 97 

[“The reason for the requirement of written findings[:] 

. . . Fidelity to the policies set forth in the governing law is 

encouraged by requiring the decisionmaker to articulate findings 

that explain why those policies require a result that is different 

from the one the rule itself would ordinarily impose. The 

additional requirement that the findings be written facilitates 

appeals grounded on those policies. . . . Not only is meaningful 

appellate review more likely in that case, it is also essential to 
22

the creation of the body of precedent necessary for the system of 

rebuttable presumptions to produce consistent and predictable 

results. Finally, any effort to study and evaluate the operation of

a system of rebuttable presumptions is feasible only if the 

physical record of cases in which the decisionmaker found a 

governing presumption rebutted contains the findings upon 

which the rebuttal was based. Such studies are necessary to 

determine whether the applicable rule is consistent and 

predictable in application, or whether amendment of the rule or 

its application is in order.”] (ALI Principles).)

The family court in this case began stating specific findings 

on the record but was unable to complete that statement. 

Omissions remain that raise questions.

For instance, subdivision (b)(2) of section 3044 requires 

courts to consider whether the domestic violence perpetrator has 

successfully completed a batterer’s treatment program. 

In this case the trial court awarded custody to Father, 

whom the court found was a batterer. The court, however, 

imposed no batterer’s treatment program on Father. Why? We 

do not know. Sound logic may support a deliberate and 

thoughtful choice on this score. Or the court simply may have 

overlooked the statutory suggestion of such a program.

Mother’s counsel was not helpful in assisting the trial court 

complete this statutory obligation. Counsel repeatedly 
23

interrupted the court, even after the court politely asked counsel 

to stop interrupting. The transcript gives context.

When the court invited oral argument on its tentative 

ruling, Mother’s counsel cited the section 3044 presumption. The 

court responded “I will look at [section] 3044 right now.” 

“The Court: . . . And based on the history since last time 

was not the first time that the courts have dealt with the two 

parents and obtained information and concluded that—

“[Mother’s Counsel]: But those—

“The Court: Please don’t interrupt -- that Father is a more 

suitable father than Mother is a suitable mother.” 

Mother’s counsel immediately interrupted again, and the 

Court stated “can I ask that you not interrupt me. You’ve done 

that twice.” 

The court continued to state the basis for its ruling Father 

was more suitable and stable than Mother. The court 

acknowledged it had issued a domestic violence restraining order 

but observed “the standard is not a very high standard.” The 

court remarked it had issued the order to address “relations 

between Mother and Father.” The court commented its visitation 

order “was based on the fact that Father is a good father to the 

children.” “I agree with [Mother’s counsel]. [Section] 3044 

applies in this situation, but [section] 3044 doesn’t bar visitation. 

It simply says if you’re looking at the person who . . . has 
24

perpetrated domestic violence . . . that that person should not 

have a presumption of custody or visitation.” “But you still then 

can go on from there and determine whether [the section 3044 

presumption] can be overcome. [Section] 3044[, subdivision (b)], 

for example, talks about the factors . . . that one can take into 

consideration in overcoming a presumption with that. And here, 

the most important thing is to look who is the more suitable 

parent . . . , despite the issues in the DVRO, which this court 

granted, . . . [and] despite that [section] Father remained the 

more appropriate parent, the better parent for the minor.” 

Mother’s counsel then argued Father “did not rebut the 

3044 presumption.” When counsel finished her argument, the 

trial judge attempted to respond:

“The Court: . . . [D]on’t forget what I just said; that the 

granting of sole physical and legal custody was improvident . . . 

and that’s why the change was . . . made. That’s why I have gone 

through the analysis I just did based on both [section] 3044.

“[Mother’s Counsel]: Your Honor, may I ask you—

“The Court: Ma’am, may I ask you.

“[Mother’s Counsel]: —what your factual basis is.

“The Court: Ma’am, may I ask you again. This is now the 

third time I have had to ask you not to interrupt me.” 
25

The trial court stated it had gone “through [section] 3044” 

and that there was no reason to modify the court’s visitation 

order. 

At this point, the transcript degenerates into elliptical 

sentence fragments as the court and counsel speak at the same 

time. Ultimately the court stated “[t]his is now the fifth time I 

am in the middle of talking and in the middle of it, you interrupt 

me.” 

The court reiterated its deliberation about who was the 

more suitable parent, about which home was more stable, and 

which person was more attentive to Matthew’s educational and 

health care needs. Mother’s home, the court concluded, was “less 

stable and was not able to provide those types of things.” 

Mother’s counsel then asked if the court had considered the 

Father’s domestic violence in rendering its decision. The court 

replied, “[i]ndeed, the court did consider that [factor] about the 

domestic violence. . . . That is a factor that the court had to 

balance . . . but balance it against the importance of . . . minor 

child . . . having a stable, safe home, and one that would be

attentive to all of the needs that the court’s already articulated 

today.” 

Mother’s counsel then asked the court to “walk through the 

factors of the . . . [section] 3044 and tell me your findings for each 

factor.” 
26

The court agreed to do so. 

The court began with section 3044, subdivision (b)(1), 

which the court said was the primary factor in this case: the best 

interest of the child 

As the court was responding to counsel’s request, however, 

counsel again interrupted the court.

This interruption prompted the court to state “this hearing 

is over because you continue to interrupt.” The court ended the 

hearing without further argument from counsel.

The trial court has many options for coping with 

intransigent counsel. The court can conclude oral argument and 

then can state its specific findings on the record. (Cf. ALI 

Principles, supra, com. b, pp. 97-98 [“The most straightforward 

method for complying with the requirement of written findings is 

an opinion or memorandum decision issued by the decisionmaker, 

ordinarily a judge in a judicial proceeding. That is not, however, 

the exclusive method for compliance. In some jurisdictions trial 

judges may dictate findings to a court reporter whose transcript 

of them is then included in the court’s case file without charge to

the parties, and without regard to whether a more complete 

transcript of the proceedings is later prepared. Such a system 

satisfies the requirement of written findings imposed by these 

Principles. It does so because it requires the decisionmaker to 

articulate the specific factual findings relied upon to justify 
27

departure from the rule, and it produces an accessible record for 

study and for appellate review of whether the findings satisfy the 

substantive standard required for exceptions to the rule.”].)

If the court opts to end the hearing before completing a 

record statement of the seven section 3044 factors, however, the 

statute requires the court’s statement of reasons about these 

seven specific factors to be completed in writing. (See § 3011, 

subd. (e)(1).)

We reverse and remand for the family court to hold a new 

hearing and to provide this statement of specific reasons.

B. The Family Court Considered the Issue of Domestic Abuse

Mother’s second argument is that the trial court failed to 

consider the issue of domestic abuse when deciding custody. This 

is inaccurate. The trial court extensively considered this issue. 

But because we reverse and remand for a statement of reasons on 

the record or in writing, we leave the extent of reconsideration of 

this issue to the discretion of the trial court.

C. Mother Is Not Entitled to Sole Custody at This Time

Mother’s final argument is that this court immediately

should grant her sole custody. This argument fails. On remand, 

the trial court shall document its analysis of this case, taking 

express account of the seven section 3044 factors. The trial court 
28

is best situated to determine the matter of custody in the first 

instance.

DISPOSITION

The order is reversed and the case is remanded to the trial 

court for a new hearing that complies with the statutory 

requirement of an express statement of reasons that specifically 

mentions each of the seven section 3044 factors. Each side shall 

bear its own costs on appeal.

WILEY, J.*

We concur:

PERLUSS, P. J.

ZELON, J.

 

* Judge of the Los Angeles Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.