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Ellis v. Lyons Summary

 

Ellis v. Lyons published July 14, 2016

 

Factual Background

 

The Court of Appeal in Ellis v. Lyons held a California family trial court was required to give deference to an out of state jurisdiction’s abuse finding.  In that case, Mother and Father had a teenager, Daughter.  Under the California court’s custody order, Daughter spent spring break with Father.  During the most recent visit, Daughter witnessed a somewhat minor fight between Father and his brother.  Daughter spoke with Father afterwards about the incident, and the issue seemed to have resolved.  At some later point, however, Mother learned of the fight.

 

Mother filed for a DVRO in Massachusetts restraining Father from visits with Daughter.  Mother and Daughter testified Daughter feared Father.  The Massachusetts trial court believed both parties and issued the restraining order. 

 

Trial Court’s Order

 

The California trial court did not agree with the Massachusetts result.  That state did not have access to the voluminous proceedings in California.  It did not understand the family’s dynamic.  Daughter and Mother trumped up the fight in a successful attempt to achieve Daughter’s goal to spend more time with her Mother’s family.  The trial court did not change the parties custody arrangement.

 

Mother protested the court was required to apply section 3044’s presumption against joint custody unless the court found in by a preponderance of the evidence joint custody was in Daughter’s best interests.  The trial court apparently did not agree and did not discuss section 3044 in its findings.  Instead, the court relied on section 3040’s preference for joint custody.

 

Decision on Appeal

 

The court of appeal held the trial court committed reversible error when it failed to apply section 3044.  That section required

 

“upon a finding by the court hat a party seeking custody of a child has perpetrated domestic violence against the other party seeking custody of the child or against the child or the child’s sibling within the previous five years, there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrate domestic violence is detrimental to the bests interests of the child.”

 

While the Massachusetts court made a domestic violence finding, “by the court” as stated in the statute applied to the current proceedings and not out of states proceedings.  However, section 3044, subdivision (d)(2) nonetheless applied.  It stated the requirement may also be satisfied if “any court” found violence against the child.  The Massachusetts court “surely qualifie[d] as ‘any court[.]’ ” Although it applied, the trial court failed to consider section 3044 and apply the presumption.  Moreover, section 3044 specifically disallowed a trial court’s reliance on section 3040 to overcome the section 3044 presumption.  The case was remanded for the trial court to apply section 3044 in abeyance of the legal framework. 

Contact Me

FOR A CONSULTATION

 

 

(858) 274 3538

 

Dennis Temko, Esq.

Law Office of Stephen Temko
750 "B" Street Suite 2100
San Diego CA, 92101

 

 

EMAIL

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Dennis Temko was recognized as a “Rising Star” in 2017 by Super Lawyers, a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement.

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