Opinion
E077866
11-30-2021
SAMIA MURPHY, Petitioner, v. THE SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent; BRADLEY TAYLOR, Real Party in Interest.
Samia Murphy, in pro. per., for Petitioner. No appearance for Respondent. No appearance for Real Party in Interest.
NOT TO BE PUBLISHED
ORIGINAL PROCEEDING, petition for writ of mandate/prohibition. Carlos M. Cabrera, Judge. Petition granted No. FAMVS2002687.
Samia Murphy, in pro. per., for Petitioner.
No appearance for Respondent.
No appearance for Real Party in Interest.
OPINION
FIELDS ACTING P. J.
INTRODUCTION
Petitioner Samia Murphy (Mother) and real party in interest Bradley Taylor (Father) are the parents of two young children. Mother filed a document entitled "petition for writ of certiorari and or writ of habeas corpus, and or writ of prohibition or injunctions, and or writ of error coram nobis" in this court challenging the Superior Court of San Bernardino County's (family court) order of October 5, 2021, awarding temporary custody of their children to Father. We exercise our discretion to treat this as a petition for writ of mandate. (Owens v. Superior Court (1959) 52 Cal.2d 822, 827.)
Mother contends the court failed to consider Family Code section 3044 before entering the custody order. Section 3044 establishes a mandatory, rebuttable presumption against awarding custody to a parent who has committed an act of domestic violence.
All further statutory references are to the Family Code.
We requested a response to the petition and advised the parties we may issue a peremptory writ in the first instance under Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178. No response was filed. We agree with Mother that the family court erred by not considering section 3044 before awarding temporary custody of the children to Father. We therefore direct the family court to vacate its custody order of October 5, 2021, and before issuing a new custody order, to hold a noticed hearing to assess whether the presumption of section 3044 applies, and if so, whether it has been rebutted.
Mother's further request of November 17, 2021, that this court expedite its decision is denied as moot since the relief has been effectively granted.
FACTS
Mother and Father are the parties to a dissolution proceeding in San Bernardino County. At some point over the past year, Mother moved to Northern California with the children without the consent of Father or the family court. The parties are currently litigating a move-away order and custody issues. On May 6, 2021, the family court issued an interim order that the parties would share joint legal and physical custody and ordered Father to have three, seven-day visits with the children.
On June 2, 2021, Mother obtained a domestic violence restraining order against Father from the Superior Court of San Francisco County. The restraining order awarded temporary legal and physical custody solely to Mother. On July 15, 2021, Mother filed a request in the family court to change the court's interim custody and visitation orders.
The court held a hearing on Mother's request on October 5, 2021. At the hearing, Father requested full legal and physical custody because he had not been able to spend any time with the children. Both parties accused the other of being uncooperative and unaccommodating. The parties' next hearing was scheduled for December 7, 2021. In the meantime, the family court ordered the parties to continue sharing joint legal and physical custody and set a schedule for the children to stay with each parent for two weeks at a time. Father, who was representing himself, asked how that would work with the restraining order. The family court was unaware a restraining order had been issued. Mother's counsel gave the family court a copy of the order and said the San Francisco court had given mother full custody. The family court found the San Francisco court did not have jurisdiction to make custody and visitation orders. It then granted Father sole legal and physical custody of the children until the hearing on December 7, 2021, at which time the parties would again address custody. The family court found the only way to ensure the children actually see their father is to be placed in his care.
DISCUSSION
Temporary custody orders are not directly appealable (Lester v. Lennane (2000) 84 Cal.App.4th 536, 556) but may be reviewed by writ of mandate (see, e.g., S.Y. v. Superior Court (2018) 29 Cal.App.5th 324, 331-332). We review custody orders for an abuse of discretion and apply the substantial evidence standard to the court's factual findings. (In re Marriage of Fajota (2014) 230 Cal.App.4th 1487, 1497.) A court abuses its discretion if it applies improper criteria or makes incorrect legal assumptions. (Ibid.)
In fashioning a custody order, a court "is encouraged to make a reasonable effort to ascertain whether or not any emergency protective order, protective order, or other restraining order is in effect that concerns the parties or the minor." (§ 3031, subd. (a).) When a protective order or other restraining order has been issued, special considerations come into play under the Family Code. (Ellis v. Lyons (2016) 2 Cal.App.5th 404, 415.) One of those special considerations is section 3044, which establishes a rebuttable presumption that an award of joint or sole custody to a parent who has perpetrated domestic violence is not in a child's best interests. (Ibid.) 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).)
The section 3044 "presumption is mandatory and the trial court has no discretion in deciding whether to apply it: '[T]he court must apply the presumption in any situation in which a finding of domestic violence has been made.'" (Celia S. v. Hugo H. (2016) 3 Cal.App.5th 655, 661.) The presumption applies if any court has made a finding that the party seeking custody has perpetrated domestic violence within the past five years; the finding need not have been made by the family law court. (Ellis v. Lyons, supra, 2 Cal.App.5th at p. 416, citing § 3044, subd. (d)(2).) "[A] finding of domestic abuse sufficient to support a DVPA [domestic violence] restraining order necessarily triggers the presumption in section 3044." (S.M. v. E.P. (2010) 184 Cal.App.4th 1249, 1267.)
Although mandatory, the presumption is rebuttable. Subdivision (b) of section 3044 sets forth the factors a court must consider when assessing if the presumption has been rebutted. First, the court must be satisfied that the award of custody is in the child's best interest. (Fam. Code, § 3044, subd. (b)(1).) Second, the court must be satisfied that on balance, the six additional enumerated factors support an award of custody. Those factors include whether the perpetrator has successfully completed a batterer's treatment program, drug or alcohol counseling, and/or a parenting class, also, whether the perpetrator is on probation or parole, is the subject of a restraining order, or has committed further acts of domestic violence. (§ 3044, subd. (b)(2).) If the court determines the presumption has been rebutted, it must state the reasons for its decision in writing or on the record. The statement of reasons must address all of the factors outlined in section 3044, subdivision (b). (§ 3044, subd. (f); Jaime G. v. H.L. (2018) 25 Cal.App.5th 794, 805.)
Finally, section 3044, subdivision (g), provides: "In an evidentiary hearing or trial in which custody orders are sought and where there has been an allegation of domestic violence, the court shall make a determination as to whether this section applies prior to issuing a custody order, unless the court finds that a continuance is necessary to determine whether this section applies, in which case the court may issue a temporary custody order for a reasonable period of time, provided the order complies with Section 3011, including, but not limited to, subdivision (e), and Section 3020." (§ 3044, subd. (g).)
Here, the family court did not address section 3044 before entering its custody order despite having been provided a domestic violence restraining order that Mother had recently obtained against Father. Given the mandatory language of section 3044, subdivision (g), we conclude Mother has a valid claim that the family court was required to consider section 3044 before awarding temporary custody of the children to Father.
While we do not disagree with the family court's assessment that the Superior Court of San Francisco County lacked jurisdiction to make custody and visitation orders in this case (see Levine v. Smith (2006) 145 Cal.App.4th 1131, 1135 [addressing the priority of jurisdiction doctrine]), we do not believe that absolved the family court of its duty to assess whether section 3044 applied. The language of section 3044 is both mandatory and broad. It applies in any "evidentiary hearing or trial in which custody orders are sought and where there has been an allegation of domestic violence." (§ 3044, subd. (g).) At a minimum, Mother put the family court on notice of a domestic violence allegation sufficient to trigger its duty to assess whether section 3044 applied before entering the custody order.
DISPOSITION
Having followed the procedures and given the notice described in Palma v. U.S. Industrial Fasteners, Inc., supra, 36 Cal.3d at p. 178, we deem this an appropriate matter for issuance of a peremptory writ in the first instance. The error was clear, and acceleration of the normal process is warranted because the issue involves a temporary custody determination involving young children. (See Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1240-1241.)
Let a peremptory writ of mandate issue, directing the family court to vacate its order of October 5, 2021, awarding temporary custody to Father, and to issue a new custody order after holding a noticed hearing to assess whether the section 3044 presumption applies, and if so, whether it has been rebutted. This decision shall be final as to this court immediately. (Cal. Rules of Court, rule 8.490(b)(2)(A).)
Petitioner is directed to prepare and have the peremptory writ of mandate issued, copies served, and the original filed with the clerk of this court, together with proof of service on all parties.
We concur: RAPHAEL, J., MENETREZ, J.