## Facts

- D.H.’s parents had a contentious relationship that included multiple incidents of abuse and intimidation by H.H. (father) against D.H.’s mother (mother).
- Mother reported that father kicked her in the stomach after learning she was pregnant.
- After mother filed for child support, father allegedly slashed her tires to prevent her from attending the hearing; father was arrested at the hearing after becoming aggressive.
- Father later initiated custody proceedings.
- The trial court granted mother sole temporary custody but ordered a visitation schedule giving father weekly time with D.H. from Tuesdays to Fridays.
- The new schedule increased conflict between the parents. Mother reported that father repeatedly threatened her life and safety.
- Father repeatedly contacted child protective services, accusing mother of harming or threatening to harm D.H.; the allegations were found not credible.
- Mother reported that father would refuse to return D.H. after visitation, sometimes keeping the child for weeks.
- Mother became concerned that D.H. was being harmed while in father’s care; she reported that D.H. said he was frequently hit and that he displayed violent behavior.
- Mother filed for a domestic-violence restraining order (DVRO) and sought sole legal and physical custody of D.H.
- After a contested hearing, the trial court issued a DVRO protecting mother from father and awarded mother sole legal and physical custody.
- Despite awarding “sole” custody to mother, the trial court left the existing Tuesdays-to-Fridays visitation schedule in place.
- Mother appealed, arguing the schedule effectively awarded father joint physical custody without the findings required by Family Code § 3044.

## Issues

1. Whether leaving in place a visitation schedule that places the child in the restrained parent’s home for a large portion of each week amounts, in substance, to joint physical custody, requiring express Family Code § 3044 rebuttal findings before the schedule may be ordered.
2. Whether the trial court committed reversible error by denying a timely request for a statement of decision following a contested hearing that resolved material factual and legal disputes about domestic violence and custody.

## Decision

- The Court of Appeal treated the custody order according to its practical effect rather than its labels.
- A schedule that places the child with each parent for a substantial share of time can constitute joint physical custody in substance, even if the order describes the arrangement as “visitation” and designates the other parent as having “sole” physical custody.
- Because the trial court issued a DVRO and relied on Family Code § 3044, the statutory presumption against awarding sole or joint custody to a domestic-violence perpetrator applied.
- The trial court could not maintain a de facto joint-custody schedule for the perpetrator parent without first addressing § 3044’s requirements and making the express findings needed to show the presumption was rebutted.
- The trial court also erred by denying a properly made request for a statement of decision in a contested proceeding where a statement was required to permit meaningful appellate review of the court’s custody determination.
- Disposition: the DVRO and the award of sole legal and physical custody to mother were left standing, but the visitation/custody-time order was reversed and the matter remanded for further proceedings consistent with Family Code § 3044 and for issuance of a statement of decision.

## Legal Principles

- Family Code § 3044 creates a rebuttable presumption that awarding sole or joint legal or physical custody to a parent who has perpetrated domestic violence within the statutory period is detrimental to the child’s best interest.
- When § 3044 applies, the court must evaluate the statutory factors and may not award custody covered by the presumption unless it makes the findings required by statute and states reasons on the record or in writing.
- Custody characterization turns on substance, not captions: a “visitation” schedule that gives a parent a large, recurring share of custodial time may function as joint physical custody.
- In a contested family-law matter tried to the court, a timely request for a statement of decision must be granted as to the principal controverted issues; refusal is reversible when it prevents review of required statutory findings, including § 3044 findings.

## Conclusion

The Court of Appeal held that, after the trial court found domestic violence and invoked Family Code § 3044, it could not keep a schedule that effectively gave father a joint-physical-custody share of time without making the express findings required to rebut § 3044’s presumption, and it further held that the trial court erred by denying mother’s timely request for a statement of decision; the visitation/time-share portion of the order was reversed and remanded for compliant findings and further proceedings.


City and County of San Francisco v. H.H., 76 Cal. App. 5th 531 (2022)