Celia S. v. Hugo H. Summary

 

Celia S. v. Hugo H. published August 26, 2016

 

Factual Background

 

The Court of Appeal in Celia S. v. Hugo H., held that a trial court could not use visitation as a run around of section 3044’s presumption joint custody is not in a child’s best interest where there is domestic violence. In Celia S., Mother and Father had two children. The parties’ relationship later failed due to abusiveness.  The court entered as its order the parties’ joint custody stipulation.

 

There was subsequent abuse after the Order.  Mother invited Father over to her house.  An argument ensued over who was entitled to sit at a dining room chair and Father punched Mother.  Mother called the police.  One of the children told the police he saw Father hit Mother.  The police arrested Father.  The next day, Mother filed for a DVRO and sole legal and physical custody. 

 

Trial Court’s Order

 

At a contested hearing on the matter, the court found Mother was more credible.  The court issued a one-year restraining order.  As to custody, the court awarded Mother sole legal and physical custody, citing to section 3044, but allowed Father 50/50 timeshare. Mother appealed

 

Decision on Appeal

 

The Court of Appeal recounted section 3044 established a rebuttable presumption that awarding physical or legal custody to a parent who has committed domestic violence was detrimental to a child’s best interest.  The presumption was mandatory and divested the court of any discretion.  The Court of Appeal agreed with Mother’s contention the statute prohibited a 50/50 timeshare because it effectively awarded joint physical custody without requiring Father to present evidence to show the arrangement was in the children’s best interest. 

 

The trial court’s characterization of the order as visitation and not custody could not save it.  Joint physical custody meant each of the parents had significant period of physical custody.  While “significant periods” went undefined by the legislature, the Court of Appeal held 50/50 timeshare, or instances where a child saw a parent four or five times a week, was a joint custody order.  When the true nature of the court’s order was considered, not just its label, it was evident the 50/50 timeshare order was an impermissible joint custody award absent circumstances the 3044 presumption was overcome.