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Filed 4/7/23 T.S. v. J.C. CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

- FL

CUSU

- 2018

- 0003136)

Family Code section 3044 1 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.
FACT UAL AND PROCEDURAL BACKGROUND
Mother and Father began dating in 2014, and had a son, T.S., in March 2015.
T hey were living together when the child was born , but th e relationship ended several years later , and i n 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 competi ng 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 bei ng 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 informa l 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 bringin g 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 argumen t 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 we re 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 ha ve 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. H e struck me multiple times and held me down by the throat, making it hard for me to breath e . He also grabbed my phone

a nd 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, t he 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

. Ac cording to the order, n o further hearings on the matter were5

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
Californ ia 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,

eme rgency rule 8 .)
On October 21, 2020, approximately four months after the DVRO expired, Fat her 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 a sking that Father have “N o visitation ” because he was not

com plying 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 custo dy and visitation , but “because of how contentious the relationship is, I felt it nece ssary 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 t o certain changes in the visitation
schedule. Following the hearing, on December 2 8, 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 Ju ne 29, 2021, Mother filed a n 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

ove r 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 previousl y issued a DVRO against Father , and that she was unrepresented during the December 8, 2020, mediation and hearing. Finally, sh e 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 schedu led 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 w ith 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 t he 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 tha t 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 withheld7

the child from each other.” Mother ’s counsel disagreed, stating : “ T he 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 th e child, those allegations were [found to be] unfounded by Child and Family Services.” Mother ’s c ounsel 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 [ Mothe r ] 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 g ave rise to a rebuttable presumption against joint custody . The c ourt 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 f ile, 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 modi fy 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.4 th 1371, 1377.) Because the Family Code contai ns 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.” ( I bi d .)
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 no n appealable.” ( Smith v. Smith (2012)
208 Cal.App.4 th 1074, 1089 .) He then argues that because the December 2020 custody
order was a temporary order that wa s 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 20199

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).)
A n “order’s appealability is dete rmined 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.4 th 750, 755.) “ A judgme nt ‘ 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 ” ’ th e order .” ( Baker v. Castaldi (2015) 235 Cal.App.4 th 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.5 th 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 dete rmination by fil ing 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 resolve d 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 cust ody 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.4 th at p. 1089 in argu ing that temporary custody orders issued in connection with DVRO hearings are not final orders and t hus not appealable, we find the case before us factually distinct. The trial court in Smith granted a DVRO application which included as an attachment , chi ld 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.4 th 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 t his case more like Enrique M. v. Angelina V. , supra , 121 Cal.App.4 th
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 in creasing the time the child was to spend with the father. ( Id . at p p

. 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 parti es entered into a stipulation and order signed by them and the court pursuant to which they agreed to11

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 modi fy 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 Jan uary 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 Octobe r 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.4 th at p. 1378 ; see also In re Marriage of LaMusga (2004) 32 Cal.4 th 1072,
108 8 , fn. 2 [prior custo dy order entered after contested hearing reflected final judicial custody determination] .)
I I 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.4 th 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 vio lence 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 c hild should not be given to a12

parent who has perpetrated domestic violence .” ( Noble v. Superior Court (2021)
71 Cal.App.5 th 567, 576.) Section 3044 provides, “ Upon a finding by the court that a party seeking custody of a child has perpetrated domestic vi olence 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 det rimental 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 decid ing whether to apply it.” ( Celia S. v. Hugo H. (2016) 3 Cal.App.5 th 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.4 th 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 presump tion 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 p arenting 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 protect ive order or restraining order, and has or has not13

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 allege d 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 app ly 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 pres umption of section 3044 is triggered, the failure to apply it is an abuse of discretion. [Citation.]” ( Noble v. Superior
Court , supra , 71 Cal.App.5 th at p. 578 , italics omitted .)
B. Analysis
Mother ’s argument in this case is the trial court erred in findi ng 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
abus e, [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.4 th 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.4 th 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.5 th 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 a pplies i f there is a finding by the
court that a party seeking custody “perpetrated domestic violence within the prev ious five

years .” (§ 3044, subd. (a) , italics added .) In this case, a lthough 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 a ny 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 d isagree.
Mother requested a DVRO by utilizing a mandatory Judicial Council form

— DV

100

— 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 incid ents 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 w ill not
assume the trial co urt 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.4 th 496, 499 [due process requires adequate notice of the charges so
perso n accused may prepare an intelligent defense] ; In re Jesse P. (1992) 3 Cal.App.4 th 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 i t creates a rebuttable presumption against an “ award of sole or joint physical or legal custody” t o 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 cha nge a p rior
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 custod y is not equivalent to an award of custody within the meaning of section 3044 because it does not16

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 w as an order affirming joint legal custody. ( In re Marriage of Fajota , supra , 230 Cal.App.4 th at
p. 1498, italics added.)
The facts in this case are si milar 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.4 th at
pp. 1490

- 1492.) Subsequently , the trial court entered an order awarding the parties joint legal custody of their children. ( Id . at p p

. 149 2

- 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, desp ite 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 o rder. Instead, the court stated, ‘If you currently have joint, legal custody

— at this point, I’ll leave that in place.’ ” ( Id . at
p p

. 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 man datory 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 joi nt 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

w hich the court addressed custody in this case

. ” ( I bi d

. , 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 w ith 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 , 7 1 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. a t 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 t o attend custody mediation. ( Id . at p. 574.) At t he mediation, the part ies 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. ( I bi d .) The18

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

va cate 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 a greed 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 p p

. 579 , 580 , italics added.)
As in Nob le 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

cou rt “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
domes tic 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 [th e 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 , 7 1 Cal.App.5th at p. 571, f n. 2.)19

which provides, “ There is a presumption, affecting the burden of proof, that joint c ustody 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 statut e 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, w e

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

. . domestic violenc e 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
domesti c 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 creat ing a re buttable presumption against joint custody i f 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 i nform her of that presumption and to give her a copy of section
3044

. S ection 3044 prov ides, “ 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 sh all 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 , “m any 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 j oint parenting, many battered victims and their children are not benefiting from the policy behind Section 3044.’ ” (Assem. Com. on Judiciary, Analysis of S en. B ill No. 265 (2003

- 2004 Reg. Sess.) as amended June 12, 2003, p. 3.) Here, at the start of th e 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 return ed 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 t here 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
exist ence 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 behind21

Section 3044. ’ ” (Assem. Com. on Judiciary, Analysis of S en. B ill 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 medi ation 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 a nd 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.