1

Filed 4/7/23 T.S. v. J.C. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(San Joaquin)

----

T.S., JR.,

Plaintiff and Respondent,

v.

J.C.,

Defendant and Appellant.

C095373

(Super. Ct. No. STA-FLCUSU-2018-0003136)

Family Code section 30441 establishes a rebuttable presumption that awarding 

custody of a child to a parent who has committed an act of domestic violence against the 

other parent within the previous five years is detrimental to the best interest of the child. 

In order to overcome this presumption, the offending parent must convince the court that 

an award of custody to that parent is in the child’s best interest, and the court must make 

specified findings either on the record or in writing. 

1

 Further undesignated statutory references are to the Family Code.
2

In this case, appellant J.C. (Mother) obtained a one-year domestic violence 

restraining order (DVRO) against respondent T.S., Jr., (Father). A year and a half later, 

the court denied Mother’s request to modify a prior order that awarded Father joint 

custody of the couple’s son and to award her sole custody. In denying the request, the 

court found section 3044’s presumption against awarding custody to Father was 

inapplicable because the DVRO had expired. 

Mother appeals, arguing section 3044’s presumption remains in effect for five 

years regardless of whether an underlying DVRO has expired. We agree and thus reverse 

and remand to the trial court with directions to reconsider custody based on the 

presumption.

FACTUAL AND PROCEDURAL BACKGROUND

Mother and Father began dating in 2014, and had a son, T.S., in March 2015. 

They were living together when the child was born, but the relationship ended several 

years later, and in December 2017, Mother and T.S. moved in with her family in San 

Francisco. Pursuant to an informal custody arrangement, T.S. lived with Mother during 

the week, and with Father on the weekends. 

On June 6, 2018, Father filed a petition for custody and support of a minor child 

and a request for an order (RFO) seeking sole legal and physical custody of T.S.

2

 Mother

responded by seeking sole legal and physical custody of T.S.

On September 12, 2018, Father and Mother filed competing requests for DVROs 

against each other based primarily on an incident that occurred on June 4, 2018, when 

Mother and her sister picked T.S. up from Father’s apartment.

3

 Father claimed that 

2

 We have been provided with a copy of the RFO, but not the petition for custody, 

although it appears a petition was filed.

3

 Although Mother’s request was initially filed in San Francisco County Superior Court, 

it appears it was ultimately transferred to the San Joaquin County Superior Court.
3

Mother beat on his door, stormed into his apartment without being invited in, refused to 

leave when he asked her to, threatened him in some unspecified way, and threatened to 

call the police if he did not give T.S. to her. Mother claimed that Father threatened to kill 

her if she did not return T.S. to him on Thursday night, and told T.S. he would “ ‘only 

have a father’ ” if Father did not see him on Thursday. Mother also claimed that on 

December 6, 2016, Father “smacked [her] in [the] face” and would not let her get out of 

the car they were in.

Mother filed a declaration in response to Father’s request for a DVRO that 

provided additional information about the June 4 incident.4 Mother stated Father had 

T.S. on weekends pursuant to their informal custody arrangement, but he had recently 

started keeping him until Tuesday or Wednesday, and Mother became concerned that 

T.S. was missing too much preschool. June 4 was a Monday, and T.S. was scheduled to 

be in preschool that day. Mother had tried to contact Father that weekend to confirm he 

would be bringing T.S. back in time for school on Monday, but she had not been able to 

reach him. She thus drove to Father’s apartment with her sister to pick him up. She 

arrived around 10:30 a.m. and went into Father’s apartment, and the two of them got into 

an argument about where T.S. should go to school. Mother told Father she would bring 

T.S. back on Thursday, and Father responded, “ ‘I swear to god, if I do not get my son 

back on Thursday, you already know what will happen. I will get my gun and come out 

here. Anybody can get it. You, your sister, anybody.’ ” When T.S. was getting into the

4

 Mother’s response is dated August 3, 2018, and thus could not have been a filed in 

response to Father’s September 12, 2018, DVRO request. We have not been provided 

with a complete copy of the record below. We have been provided with a declaration 

signed by Father on September 12, 2018, in which he states he had previously filed a 

DVRO request. We presume both of Father’s DVRO requests were based on the June 4 

incident, and Mother’s August 3 response was filed in response to the first request. 
4

car, Mother told him he would see his dad in a few days, and Father leaned in and told 

T.S., “ ‘if I don’t see you on Thursday, just know that you’re only going to have a dad.’ ”

Mother’s declaration also provided additional information about the December 6, 

2016, incident. She stated, “I was driving in a car with [Father] when he began accusing 

me of cheating on him. It became a verbal argument, and when I tried to exit the vehicle, 

[Father] grabbed me and pulled me back into the car. He struck me multiple times and 

held me down by the throat, making it hard for me to breathe. He also grabbed my phone 

and broke it. A passerby saw [Father] beating me and called the police, and a [police] car 

responded to the scene. After examining me, seeing my injuries and the broken phone, 

and speaking with [Father] and me, the police arrested [Father].” A copy of the police 

report was attached to the declaration.

On April 3, 2019, a trial was held on the competing DVROs and the custody issue. 

Mother was represented by counsel and Father represented himself. Both parties testified

on their own behalf, and both called witnesses.

Mother testified about the December 6, 2016, incident in greater detail. The police 

eventually showed up and arrested Father, but Mother declined to press charges. During 

his testimony, Father denied hitting Mother, but acknowledged he went to jail as a result 

of the incident.

Mother also testified about the incident on June 4, 2018, in some detail. Her 

testimony was largely consistent with her declaration.

Mother’s sister also testified about the June 4, 2018, incident. Her testimony was 

consistent with Mother’s.

At the conclusion of the trial, the court took the matter under submission, and on 

April 10, 2019, it issued two orders: (1) an order after hearing, and (2) a DVRO. The 

order after hearing awarded sole legal and physical custody of T.S. to Mother. It also 

granted Father visitation. According to the order, no further hearings on the matter were 
5

scheduled, and there is nothing on the face of the order that suggests it was temporary or 

pendente lite. We will refer to this order as the April 2019 custody order. 

The DVRO ordered Father to stay away from and not to contact Mother, except as 

required for court-ordered visitation. The DVRO was initially set to expire on April 3, 

2020, but it was extended to June 24, 2020, pursuant to Emergency Rule 8 of the 

California Rules of Court, which automatically extended certain dates during the state of 

emergency related to the COVID-19 pandemic. (See Cal. Rules of Court, appen. I, 

emergency rule 8.)

On October 21, 2020, approximately four months after the DVRO expired, Father

filed an RFO seeking to change custody, and requesting joint legal and physical custody

of T.S. On November 5, 2020, Mother filed her own RFO seeking to change the 

visitation schedule, and asking that Father have “No visitation” because he was not 

complying with the court-ordered visitation schedule and he “withholds child for multiple 

days and weeks since May 2020.”

A hearing on both requests was held on December 8, 2020. Neither party was 

represented by counsel. At the start of the hearing, the trial court sent the parties to 

mediation, and they returned to court later that day with the mediator. The mediator 

stated the parties had come to an agreement on custody and visitation, but “because of 

how contentious the relationship is, I felt it necessary to put [the agreement] on the 

record.” The mediator stated the parties had agreed to share joint legal custody of T.S.; 

that Mother would have physical custody; and to certain changes in the visitation 

schedule.

Following the hearing, on December 28, 2020, the court issued an order awarding 

joint legal custody of T.S. to both parents and maintaining physical custody with Mother. 

It also provided for a visitation schedule for Father. We will refer to this as the 

December 2020 custody order. 
6

On June 29, 2021, Mother filed an RFO seeking to change custody and visitation. 

In support of the RFO, Mother stated that Father had not returned T.S. to her on May 4, 

2021, as required by the December 2020 custody order, and that she had not seen T.S. for 

over six weeks. She stated she had filed multiple police reports documenting Father’s 

failure to return T.S., and had sought the assistance of the Contra Costa County District 

Attorney’s Office to retrieve him, to no avail. She noted the court had previously issued 

a DVRO against Father, and that she was unrepresented during the December 8, 2020, 

mediation and hearing. Finally, she stated that when she agreed to joint custody during 

mediation, she did not know the existence of a DVRO raised “a presumption against 

sharing joint custody . . . and that [Father] had the burden of overcoming that 

presumption.”

In his response to the RFO, Father stated Mother had kept T.S. from him during 

his scheduled visitation time in late December 2020, and failed to show up at the 

scheduled drop-off location on two occasions in April 2021. He stated that when he 

picked T.S. up on May 4, 2021, T.S. “disclosed to me that [Mother] had been physically 

abusing him with a shoe.” He reported the alleged abuse to child protective services 

(CPS), and was informed by “Inspector Rivera from the DA’s office” that because there 

was an open CPS case, “I was within my rights to keep [T.S.] in my custody.” He 

acknowledged he did not return T.S. to Mother until July 6, 2021, when Inspector Rivera 

informed him the CPS case had been closed and he had to return T.S. to his mother.

Mother filed a reply stating CPS had concluded the allegation of abuse was 

unfounded and had closed the case.

A hearing on the RFO was held on August 3, 2021. Mother was represented by 

counsel and Father represented himself. The mediator from the December 8, 2020,

hearing was also present, and she stated, “the parties were here late last year and at that 

time they had the same, exact issue where both parties were withholding the child. And it 

seems like the matter presented before the court today is that again both parents withheld 
7

the child from each other.” Mother’s counsel disagreed, stating: “The reason that we’re 

in court today is that [Father] withheld the child for more than nine weeks. It took the 

involvement of the Contra Costa County District Attorney’s Office to recover the child. 

Although there were allegations made about the safety of the child, those allegations were 

[found to be] unfounded by Child and Family Services.” Mother’s counsel also noted,

“there was a domestic violence restraining order in this matter. It expired last year, I 

believe, but the presumption against joint custody was never overcome by [Father]. The 

only reason that the parties shared joint custody in December was that [Mother] agreed to 

it at the time, she was unrepresented, she did not understand what that meant or what the 

significance of that was. [¶] But there’s been no effort on [Father’s] part to overcome 

that presumption.”

At the conclusion of the hearing, the court found it was in T.S.’s best interest to 

have the December 2020 custody order “remain as the custody order going forward.” 

Mother’s counsel asked the court what facts supported that order, in light of the fact that 

the issuance of the DVRO against Father gave rise to a rebuttable presumption against

joint custody. The court responded, “the domestic violence restraining order has expired. 

I’m not hearing recent allegations of domestic violence regarding [Father]. . . . And 

based on my review of the case file, certainly at this point I’m finding it’s going to be in 

the best interest of the child to have frequent and continuing contact with both parents.”

On October 14, 2021, the court issued an order after hearing. The court denied 

Mother’s request to modify the December 2020 custody order, and reiterated that the 

December 2020 custody order remained in effect and that the parties would continue to 

share joint legal custody of T.S., with Mother having sole physical custody. As relevant 

here, the court also ruled, “In reaching its decision to award the parties joint legal 

custody, the Court finds that because there is no domestic violence restraining order 

currently in effect, there is no need to address the Family Code Section 3044 presumption 

against joint custody.”
8

On December 13, 2021, Mother filed a notice of appeal of the October 14, 2021, 

order.

DISCUSSION

I

Appealability

We first address Father’s threshold argument that the October 14, 2021, order is 

not appealable. We conclude the order is appealable pursuant to Code of Civil Procedure 

section 904.1, subdivision (a)(2), as an order made after a final judgment.

“It is settled that the right to appeal is strictly statutory, and a judgment or order is 

not appealable unless made so by statute. [Citation.] In civil matters, Code of Civil 

Procedure section 904.1 is the main statutory authorization for appeals. Code of Civil 

Procedure section 904.1, subdivision (a) provides in relevant part that an appeal may be 

taken from: a final judgment (subd. (a)(1)); an order made after an appealable judgment 

(subd. (a)(2)); or ‘an order made appealable by the provisions of the . . . Family Code’ 

(subd. (a)(10)).” (Enrique M. v. Angelina V. (2004) 121 Cal.App.4th 1371, 1377.) 

Because the Family Code contains no express provision governing appeals of child 

custody orders (with limited exceptions that are not applicable here), “the right to appeal 

a child custody determination is generally limited to final judgments and orders made 

after final judgments.” (Ibid.) 

Father argues the October 14, 2021, order is neither a final judgment nor an order 

made after a final judgment. He argues the order Mother sought to modify (i.e., the 

December 2020 custody order) was a temporary custody order, and he cites the “well 

settled” rule “that temporary custody orders are nonappealable.” (Smith v. Smith (2012) 

208 Cal.App.4th 1074, 1089.) He then argues that because the December 2020 custody 

order was a temporary order that was not appealable, it stands to reason that an order 

refusing to modify a temporary custody order is also not appealable. We disagree

because Father focuses on the wrong order. Instead, we find the original April 2019 
9

custody order was a final judgment, and the October 14, 2021, order is appealable as an 

order made after a final judgment. (Code Civ. Proc., § 904.1, subd. (a)(2).) 

An “order’s appealability is determined not from its form, but from its legal 

effect,” and “we may consider orders a final judgment for purposes of appeal when . . . 

they have all the earmarks of a final judgment.” (Estate of Miramontes-Najera (2004) 

118 Cal.App.4th 750, 755.) “A judgment ‘is the final determination of the rights of the 

parties in an action or proceeding.’ (Code Civ. Proc., § 577.) Generally, a judgment is 

final ‘ “where no issue is left for future consideration except the fact of compliance or 

noncompliance with” ’ the order.” (Baker v. Castaldi (2015) 235 Cal.App.4th 218, 223.) 

An order is properly treated as a final judgment where it disposes of all issues between 

the parties and contemplates no further court action, such as a trial or the preparation of 

another order or judgment. (See City of Calexico v. Bergeson (2021) 64 Cal.App.5th

180, 192; Baker, at p. 223.)

During oral argument, Father’s counsel argued that the April 2019 custody 

determination was made in connection with a DVRO hearing and is not a final judgment. 

We disagree.

Here, Father initiated the custody determination by filing a petition seeking sole 

legal and physical custody of T.S., and Mother responded by seeking sole legal and 

physical custody herself. Months later, Mother and Father filed their requests for 

DVROs. Following a one-day trial, the court issued the April 2019 custody order, 

awarding Mother sole legal and physical custody of T.S., and specifying a visitation 

schedule for Father. The court issued the order on Judicial Council form FL-341—

Findings and Order after Hearing. This order resolved all issues raised in Father’s 

petition and Mother’s response thereto. Although it was denominated an “order” rather 

than a “judgment,” there is no suggestion that it was temporary, and there is no 

suggestion that further court proceedings regarding custody would be held or were 

contemplated. 
10

At the same time it issued this custody order, the court also issued the DVRO on 

Judicial Council form DV-130—Restraining Order After Hearing. Significant to our 

inquiry, the DVRO did not include a custody and visitation order, but rather referenced 

that such would “be prepared on a separate face.” Although Father relies on the holding 

in Smith v. Smith, supra, 208 Cal.App.4th at p. 1089 in arguing that temporary custody 

orders issued in connection with DVRO hearings are not final orders and thus not 

appealable, we find the case before us factually distinct. The trial court in Smith granted 

a DVRO application which included as an attachment, child custody and visitation 

orders. (Smith, at p. 1078.) Furthermore, the order from which the appellant in Smith

appealed, was clearly identified as a “ ‘temporar[y]’ child custody/visitation” order. (Id.

at p. 1089.) The court in Smith rejected the appellant’s attempt to “cast the DVPA 

restraining order as a prior final judgment . . .” and cited Keith R. v. Superior Court for 

the rule that a domestic violence order under the Domestic Violence Prevention Act 

(DVPA) (§ 6200 et seq.) is not a permanent custody determination. (Smith, at p. 1090;

see Keith R. v. Superior Court (2009) 174 Cal.App.4th 1047, 1051.) That the trial court 

here may have held the hearings on the petition for custody and the application for a 

DVRO at the same time, does not mean that the resulting custody order was made in 

connection with granting the DVRO. Indeed, the custody order had its own life, 

independent of the DVRO application.

We find this case more like Enrique M. v. Angelina V., supra, 121 Cal.App.4th

1371. There, a father filed a complaint seeking custody of his son. Following a hearing, 

the trial court entered an order in June 1998 awarding joint legal custody to both parents, 

specifying the child would primarily reside with the mother, and gradually increasing the 

time the child was to spend with the father. (Id. at pp. 1373-1374.) Several years later,

the mother obtained a DVRO against the father, and sought to change the father’s 

visitation schedule. (Id. at pp. 1374-1375.) In June 2002, the parties entered into a 

stipulation and order signed by them and the court pursuant to which they agreed to 
11

continue to share joint custody, and also agreed to modify the visitation schedule. (Id. at 

p. 1375.) In August 2002, the father filed a request to modify the visitation schedule

again. The trial court denied the request by order dated January 7, 2003, and the father 

appealed. (Id. at p. 1376.) The appellate court requested supplemental briefing on 

whether the January 7, 2003, order was appealable, and ultimately held it was, 

explaining: “We conclude that the trial court’s June 1998 order, entered after a hearing 

and determining the issues raised in [the father’s] complaint, constituted an appealable 

‘final judgment[] as to custody,’ ” and that the January 7, 2003 order was thus “an 

appealable order after judgment.” (Id. at p. 1378.)

So, too, in this case. We conclude the trial court’s April 2019 custody order, 

which was entered after a trial and which determined the issues raised in Father’s petition 

for custody and Mother’s response thereto, constituted an appealable final judgment as to 

custody, and we also conclude that the October 14, 2021, order that is the subject of this 

appeal “is an appealable order after judgment.” (Enrique M. v. Angelina V., supra, 

121 Cal.App.4th at p. 1378; see also In re Marriage of LaMusga (2004) 32 Cal.4th 1072, 

1088, fn. 2 [prior custody order entered after contested hearing reflected final judicial 

custody determination].)

II

The Merits of the Appeal

A. Governing Law and Standard of Review

In making child custody determinations, the court’s “ ‘overarching concern is the 

best interest of the child.’ ” (In re Marriage of Brown & Yana (2006) 37 Cal.4th 947, 

955.) “In considering the impact of domestic violence on the ‘best interest’ of the child, 

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).) This policy has been codified in section 3044 as a rebuttable 

presumption that sole or joint physical or legal custody of a child should not be given to a 
12

parent who has perpetrated domestic violence.” (Noble v. Superior Court (2021) 

71 Cal.App.5th 567, 576.) Section 3044 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, 

pursuant to Sections 3011 and 3020. This presumption may only be rebutted by a 

preponderance of the evidence.” (§ 3044, subd. (a).) “This presumption is mandatory 

and the trial court has no discretion in deciding whether to apply it.” (Celia S. v. Hugo H.

(2016) 3 Cal.App.5th 655, 661.) “[T]he court must apply the presumption in any 

situation in which a finding of domestic violence has been made. A court may not ‘ “call 

. . . into play” the presumption contained in section 3044 only when the court believes it 

is appropriate.’ ” (In re Marriage of Fajota (2014) 230 Cal.App.4th 1487, 1498.)

In order to rebut the presumption, section 3044 provides the court must find “[t]he 

perpetrator of domestic violence has demonstrated that giving [him or her] sole or joint 

physical or legal custody . . . 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 . . . may not be used to rebut the presumption, in whole or in part.” (§ 3044, 

subd. (b)(1).) Section 3044 also contains a list of factors the court must consider in 

determining whether the presumption has been rebutted,5 and it requires the court to 

5

 The factors are: “(A) The perpetrator has successfully completed a batterer’s treatment 

program that meets the criteria outlined in subdivision (c) of Section 1203.097 of the 

Penal Code. [¶] (B) The perpetrator has successfully completed a program of alcohol or 

drug abuse counseling, if the court determines that counseling is appropriate. [¶] (C) 

The perpetrator has successfully completed a parenting class, if the court determines the 

class to be appropriate. [¶] (D) The perpetrator is on probation or parole, and has or has 

not complied with the terms and conditions of probation or parole. [¶] (E) The 

perpetrator is restrained by a protective order or restraining order, and has or has not 
13

make specific findings about each of those factors and to “state its reasons in writing or 

on the record” for finding the presumption has been rebutted. (§ 3044, subd. (f).) 

Finally, section 3044 provides, “In a custody . . . proceeding in which a party has alleged

that the other party has perpetrated domestic violence in accordance with the terms of this 

section, the court shall inform the parties of the existence of this section and shall give 

them a copy of this section prior to custody mediation in the case.” (§ 3044, subd. (h).) 

“ ‘We review custody . . . orders for an abuse of discretion, and apply the 

substantial evidence standard to the [trial] court’s factual findings. [Citation.] A court 

abuses its discretion in making a child custody order . . . if it applies improper criteria or 

makes incorrect legal assumptions.’ [Citation.] If the presumption of section 3044 is 

triggered, the failure to apply it is an abuse of discretion. [Citation.]” (Noble v. Superior 

Court, supra, 71 Cal.App.5th at p. 578, italics omitted.) 

B. Analysis

Mother’s argument in this case is the trial court erred in finding the section 3044 

presumption did not apply because the DVRO had expired. We agree.

The court issued a DVRO against Father on April 10, 2019. A DVRO “must be 

based on a finding that the party being restrained committed one or more acts of domestic 

abuse, [and] a finding of domestic abuse sufficient to support a [DVRO] necessarily 

triggers the presumption in section 3044.” (S.M. v. E.P. (2010) 184 Cal.App.4th 1249, 

1267.) “If a domestic violence restraining order has been issued, then it is clear that there 

has been a finding of domestic violence sufficient to trigger the presumption of section 

3044.” (In re Marriage of Fajota, supra, 230 Cal.App.4th at p. 1500, fn. 10.) The 

DRVO that was issued in this case thus constitutes a finding that Father committed 

complied with its terms and conditions. [¶] (F) The perpetrator of domestic violence has 

committed further acts of domestic violence. [¶] (G) The court has determined, pursuant 

to Section 6322.5, that the perpetrator is a restrained person in possession or control of a 

firearm or ammunition in violation of Section 6389.” (§ 3044, subd. (b)(2).)
14

domestic violence and triggers the presumption in section 3044. 

Although the DVRO in this case expired in June 2020, “Section 3044’s 

presumption remains in effect for five years regardless of whether an underlying 

domestic violence restraining order has expired.” (Celia S. v. Hugo H., supra,

3 Cal.App.5th at pp. 665-666.) The trial court thus erred when it found “because there is 

no domestic violence restraining order currently in effect, there is no need to address the 

Family Code Section 3044 presumption against joint custody.”

Father does not dispute that the DVRO triggers the presumption in section 3044,

regardless of the fact that it has expired. He thus does not dispute that the trial court 

erred when it found otherwise. He nonetheless argues section 3044 and/or its 

presumption are inapplicable for three reasons, and he cites “the settled principle of 

appellate review that a correct decision of the trial court must be affirmed on appeal even 

if it is based on erroneous reasoning.” (Green v. Superior Court (1985) 40 Cal.3d 126, 

138.) 

First, Father argues that the presumption only applies if there is a finding by the 

court that a party seeking custody “perpetrated domestic violence within the previous five 

years.” (§ 3044, subd. (a), italics added.) In this case, although the DVRO was issued on 

April 10, 2019, it does not identify what act or acts of domestic violence Father

committed or when those acts occurred.

6

 Father thus argues, “Without any specific 

finding in connection with the [DVRO], it cannot be concluded that there was a ‘finding 

by the court that a party seeking custody of a child has perpetrated domestic violence 

within the previous five years’ of the October 14, 2021 order.” We disagree.

Mother requested a DVRO by utilizing a mandatory Judicial Council form—DV100—created for that purpose. Part 27 of that form asks her to describe how Father

6 The DVRO is a Judicial Council form (Judicial Council Forms, form DV-130), and the 

form contains no space to make findings about the alleged domestic violence. 
15

abused her. In response, she stated the “most recent abuse” was the June 4, 2018,

incident, and she described that incident. She also identified one other incident of 

abuse—the December 6, 2016, incident where Father hit her inside her car. Those are the 

only two incidents of abuse identified in the request for a DVRO, and both incidents 

occurred within five years of the October 2021 order. 

Father notes that, at the trial on the DVROs, Mother also testified about two other 

incidents of abuse, one in 2015 and one in August 2016. He argues the DVRO thus could 

have been based on these two incidents, both of which occurred more than five years 

before the October 2021 order. We disagree, because, as just noted, Mother’s request for 

a DVRO identified only the June 4, 2018, and December 6, 2016, incidents. We will not 

assume the trial court issued the DVRO based on incidents that were not identified in the 

request, because doing so would raise serious due process concerns. (See, e.g., In re A.L.

(2015) 233 Cal.App.4th 496, 499 [due process requires adequate notice of the charges so 

person accused may prepare an intelligent defense]; In re Jesse P. (1992) 3 Cal.App.4th

1177, 1182 [“ ‘Due process of law requires that an accused be advised of the charges 

against him so that he has a reasonable opportunity to prepare and present his defense and 

not be taken by surprise by evidence offered at his trial’ ”].) 

Father argues section 3044 is inapplicable for a second reason. He notes it creates 

a rebuttable presumption against an “award of sole or joint physical or legal custody” to a 

person who has perpetuated domestic violence. (§ 3044, subd. (a), italics added.) 

According to Father, the trial court’s October 14, 2021, order did not award him custody 

within the meaning of section 3044. Instead, it denied Mother’s request to change a prior 

award of custody (i.e., the December 2020 order awarding joint legal custody to both 

parents). Citing a dictionary definition of the term award as “ ‘something that is 

conferred or bestowed,’ ” Father argues an order declining to change custody is not 

equivalent to an award of custody within the meaning of section 3044 because it does not 
16

confer or bestow anything on anyone and merely maintains the status quo.

7

 We disagree, 

because case law teaches that the presumption in section 3044 applies to “orders granting 

or affirming joint legal custody,” and we find the October 14, 2021, order was an order 

affirming joint legal custody. (In re Marriage of Fajota, supra, 230 Cal.App.4th at 

p. 1498, italics added.)

The facts in this case are similar to the facts in In re Marriage of Fajota. In that 

case, the wife sought a DRVO against her husband, filed a petition for dissolution of the 

marriage, and sought sole custody of their children. The trial court denied the request at a 

hearing held on the DVRO. (In re Marriage of Fajota, supra, 230 Cal.App.4th at 

pp. 1490-1492.) Subsequently, the trial court entered an order awarding the parties joint 

legal custody of their children. (Id. at pp. 1492-1493.) Six weeks later, the wife filed a 

second request for a DVRO based on conduct that had occurred after the hearing on the 

first request. Following a hearing on this second request, the court issued a one-year 

DVRO, but “did not revisit the award of joint legal custody, despite having issued a 

restraining against [the husband] based on domestic violence. . . . Although the court 

recognized the existence of the presumption against joint custody [in section 3044], the 

court did not apply the presumption in making its custody order. Instead, the court stated, 

‘If you currently have joint, legal custody—at this point, I’ll leave that in place.’ ” (Id. at 

pp. 1495-1496.) That same day, the court entered a judgment of dissolution, terminating 

the parties’ marriage, and ordering that the parties would share joint legal custody. The 

wife appealed, and the appellate court reversed because there was “no indication in the 

record that the judges who made orders granting or affirming joint legal custody for [the 

father] applied the mandatory presumption provided in section 3044.” (Id. at p. 1498, 

italics added.) As relevant here, the appellate court held the judge who issued the DVRO 

7

 Father’s request that we judicially notice the dictionary definition of the word “award”

is granted.
17

should also have applied the presumption in section 3044 and reconsidered the prior 

order awarding joint custody to both parents, and that the failure to do so was an abuse of 

discretion. (Fajota, at p. 1500.) It also held, “There is no reasonable basis for the trial 

court’s failure to apply the section 3044 presumption at either of the two hearings at 

which the court addressed custody in this case.” (Ibid., italics added.)

As in In re Marriage of Fajota, the trial court in this case awarded the parties joint 

legal custody, and then subsequently denied Mother’s request to modify that award after 

the section 3044 presumption was brought to its attention and instead left the prior order 

in place. We agree with the In re Marriage of Fajota court that the trial court should 

have considered and applied the section 3044 presumption both when it initially awarded 

Mother and Father joint legal custody in December 2020, and when it denied Mother’s 

request to change custody in October 2021. 

Noble v. Superior Court, supra, 71 Cal.App.5th 567 is also similar. In that case, 

the wife began dissolution proceedings in California and sought custody of the couple’s 

two children. (Id. at pp. 571-572.) Thereafter, she obtained a protective order against the 

husband in a Utah court based on threats of physical violence. (Id. at p. 573.) At a 

hearing regarding custody, the California court temporarily granted the parties joint legal 

and physical custody “[w]ithout mentioning section 3044,” despite having been informed 

of the Utah court’s order. The court also ordered the parties to attend custody mediation. 

(Id. at p. 574.) At the mediation, the parties reached a temporary agreement on visitation 

and custody, and the mediator submitted a recommendation to the court that incorporated 

the parties’ agreement and that also noted the court had previously ordered the parties to 

share custody of the children. (Id. at pp. 574-575.) At a subsequent hearing, the court 

adopted the mediator’s recommendation, again “without mentioning section 3044.” (Id. 

at p. 575.) Six months later, the parties filed competing motions to modify custody, with 

each seeking sole legal and physical custody of the children. Following a hearing, the 

trial court “left the joint custody order in place” pending further proceedings. (Ibid.) The 
18

wife filed a petition for writ of mandate seeking an order compelling the trial court to 

vacate its interim orders granting the father joint custody of the children and to enter a 

new order after considering the section 3044 presumption, and the appellate court granted 

the petition. (Noble, at p. 571.)8 As relevant here, the appellate court agreed with the 

wife that “the family court erred by failing to apply section 3044’s rebuttable 

presumption when making its February and August 2020 custody orders,” and it held, 

“the court is required to determine whether section 3044 applies whenever there is an 

evidentiary hearing or trial in which custody orders are sought and domestic violence 

has been alleged.” (Noble, at pp. 579, 580, italics added.)

As in Noble v. Superior Court, the trial court in this case awarded the parties joint 

legal custody based on their agreement, and then subsequently “left the joint custody 

order in place” after Mother asked for sole custody. Also as in Noble, we find the trial 

court “erred by failing to apply section 3044’s rebuttable presumption when making” 

both orders, and we agree with the Noble court’s holding that section 3044 applies 

“whenever there is an evidentiary hearing . . . in which custody orders are sought and 

domestic violence has been alleged.” Here, the August 3, 2021, hearing on Mother’s 

RFO was an evidentiary hearing at which custody orders were sought and domestic 

violence was alleged, and the trial court was thus required to apply section 3044’s 

presumption. 

Father’s final argument is that the presumption in section 3044 has been rebutted 

as a matter of law by another presumption—namely, the presumption in section 3080, 

8

 The appellate court “originally denied the petition, noting it challenged a temporary 

order and the dissolution matter was still pending. Thereafter, the California Supreme 

Court granted [the wife’s] petition for review and transferred the matter to [the appellate 

court] with directions to vacate [the] order denying the petition and issue an order 

directing the parties to show cause why the relief sought in the petition should not be 

granted.” (Noble v. Superior Court, supra, 71 Cal.App.5th at p. 571, fn. 2.) 
19

which provides, “There is a presumption, affecting the burden of proof, that joint custody 

is in the best interest of a minor child, subject to Section 3011, where the parents have 

agreed to joint custody or so agree in open court at a hearing for the purpose of 

determining the custody of the minor child.” Father notes the December 2020 order 

awarding him joint legal custody of T.S. was based on an agreement that the parties 

reached during mediation, and he argues, “Therefore, even if there was a presumption . . . 

under section 3044 that awarding [him joint legal] custody of T.S. was not in the child’s 

best interest, that presumption was, pursuant to section 3080, rebutted in December 2020 

by the fact that [Mother] consented to shared custody.” We disagree.

First, there is nothing in the language of either statute that suggests the 

presumption in section 3080 that joint custody is in the best interest of the child when the 

parents agree to it legally rebuts the presumption in section 3044. Indeed, the language 

of section 3080 itself strongly suggests otherwise. It states the presumption that joint 

custody is in the best interest of the child when the parties agree to it is “subject to 

Section 3011.” (§ 3080.) Section 3011 provides that, in determining the best interest of 

the child, the court “shall” consider (1) the health, safety, and welfare of the child, and (2) 

a history of abuse by the parent seeking custody. (§ 3011, subd. (a).) In this regard, we 

note that the Legislature has expressly found and declared that “the perpetuation of . . . 

domestic violence in a household where a child resides is detrimental to the health, 

safety, and welfare of the child.” (§ 3020, subd. (a), italics added.) We thus interpret 

section 3080’s reference to section 3011 to mean that a court cannot ignore a history of 

domestic violence or abuse simply because the parties agree to joint custody. Instead, 

section 3080 requires the court to decide whether joint custody is in the best interest of 

the child given that history, and section 3044 then reinforces this by creating a rebuttable 

presumption against joint custody if there has been a court finding of domestic violence 

within the previous five years. 
20

Second, when Mother agreed to joint custody during mediation, she was 

unrepresented and unaware of section 3044’s presumption because the trial court failed to 

fulfill its obligation to inform her of that presumption and to give her a copy of section 

3044. Section 3044 provides, “In a custody or restraining order proceeding in which a 

party has alleged that the other party has perpetrated domestic violence in accordance 

with the terms of this section, the court shall inform the parties of the existence of this 

section and shall give them a copy of this section prior to custody mediation in the case.” 

(§ 3044, subd. (h), italics added.) This provision was added to section 3044 by Senate 

Bill No. 265 (2003-2004 Reg. Sess.). An Assembly analysis of this provision explains, 

“many domestic violence victims are unaware that they do not have to agree to joint 

custody during court ordered mediation. The author states, ‘Since most custody cases are 

resolved in mediation and mediation often involves encouraging couples to agree to joint 

parenting, many battered victims and their children are not benefiting from the policy 

behind Section 3044.’ ” (Assem. Com. on Judiciary, Analysis of Sen. Bill No. 265

(2003-2004 Reg. Sess.) as amended June 12, 2003, p. 3.) 

Here, at the start of the December 8, 2020, hearing on the parties’ competing 

RFOs to modify custody and visitation, the court sent the parties to mediation without 

informing them of the existence of section 3044 or providing them a copy of it. When 

the parties and the mediator returned to court later that day, they did not mention section 

3044. Indeed, the transcript of the December 8 hearing contains no reference to section 

3044 at all. When it sent the parties to mediation, the court knew (or should have known) 

that there were allegations of domestic violence in the case because (1) it had issued a

DVRO against Father a little over a year and a half ago, and (2) Mother’s RFO identified 

the DVRO. The court was thus required by section 3044 to inform the parties of its 

existence and to provide them with a copy before sending them to mediation. Because it 

failed to do so, Mother was “unaware that [she did] not have to agree to joint custody 

during court ordered mediation,” and thus unable to “ ‘benefit[] from the policy behind 
21

Section 3044.’ ” (Assem. Com. on Judiciary, Analysis of Sen. Bill No. 265 (2003-2004 

Reg. Sess.) as amended June 12, 2003, p. 3.) We will not interpret section 3080’s 

presumption as effectively binding Mother to an agreement she made during a mediation 

where, as here, the court failed to comply with its statutory obligation to inform the 

parties about the existence of section 3044 and its presumption against joint custody. 

DISPOSITION

The trial court’s October 14, 2021, order that Mother and Father shall continue to 

share joint legal custody of T.S. is reversed. On remand, the trial court shall determine 

legal custody of T.S. after applying the presumption set forth in section 3044. Mother

shall recover her costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)

 /s/

EARL, J.

We concur:

 /s/

ROBIE, Acting P. J.

 /s/

DUARTE, J.