Page 1
DVRO Triggers Presumption of Unfitness for Child Custody Even if Consented to—C.A.
By a MetNews Staff Writer
Div. Three of the First District Court of Appeal has held that after issuing a domestic violence restraining order against a father—although it was pursuant to a stipulation—a judge was statutorily obliged to determine whether the presumption against awarding custody to the restrained person had been overcome before declaring, in a subsequent proceeding, that the parents would continue to share custody.
The appeals court decided the issue despite mootness saying that the “matter presents a significant issue, which is capable of repetition yet evading review” and in light of the possibility that the parties might seek further modifications of the custody orders.
Justice Victor Rodríguez authored the opinion, filed Monday. It reverses a July 25, 2023 order by Marin Superior Court Judge Sheila Shah Liechtblau denying a motion by Cassaundra Campbell asking that sole custody of her two children be shifted to her based on alleged misconduct on the part of the father, Danilo Visnich.
Two months earlier, a domestic violence restraining order—in particular, a “one-year restraining order after hearing” (“ROAH”)—had been imposed on Visnich, as agreed upon by the parties.
Family Code §3044
Rodríguez said that Liechtblau was remiss in July 2023 in not applying the presumption erected by Family Code §3044. That section provides that “[u]pon 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….”
Visnich contended that §3044 does not apply because he and Campbell—to whom he had not been married—stipulated to entry of the restraining order rather than Liechtblau having adjudicated the validity of the allegations in the petition for the order.
Rodríguez posed this question:
“When a trial court issues an ROAH pursuant to a stipulation, has the court thereby made a ‘finding’ that the restrained party ‘perpetrated domestic violence’ such that the presumption in section 3044 arises?”
He answered, “Plainly, yes.”
Requirement of §6306
The jurist explained that under Family Code §6306, a judge may order issuance of a ROAH only if “an affidavit or testimony and any additional information provided to the court…shows, to the satisfaction of the court, reasonable proof of a past act or acts of abuse.” Rodríguez reasoned:
“Here, had the court not been satisfied there was reasonable proof of abuse—notwithstanding the parties’ stipulation—issuing the ROAH would have been an abuse of discretion….Put another way, issuing the ROAH constituted a judicial finding that [Visnich] had perpetrated domestic abuse.”
He commented:
“Allowing individuals to evade section 3044’s safeguards by stipulating to an ROAH and then arguing no finding of domestic violence was ever made would undermine important public policy.”
In July 2024, Liechtblau made a finding, by a preponderance of the evidence, that Visnich had rebutted the §3044 presumption. The appeals court denied his motion to dismiss the appeal as moot.
Rodríguez specified that “[b]ecause subsequent legal proceedings have rendered the challenge to the July 25, 2023 order moot, no further action need be taken in this matter by the trial court.”
The case is C.C. v. D.V., 2024 S.O.S. 3254.
Copyright 2024, Metropolitan News Company