Q. I had to get DV orders against my child's mother because of her
violent behavior. The court mediator has since recommended week off, week
on visitation to her of our 9 year old, but sole legal custody and sole
physical custody with me. We have a hearing next week. I am having a hard
time understanding how this much visitation time (50% to her) makes sense?
50-50 Custody In Where There Has Been Domestic Violence?
Maybe the family court services mediator doesn't understand the law
concerning domestic violence presumptions, but I suspect he/she wants
to encourage frequent access and contact between Mom and her son. Nonetheless,
this may be an example of 'splitting the baby' - by giving you
sole legal and sole physical custody titles but the mother an equal parental
timeshare, this individual is exercising conventional MHP best practice's
wisdom about attachments and bonding, while nodding to government mandated
labels (i.e., "sole" custody).
Mental health professionals are great guides, and even allies when you
can enlist them, but they won't slavishly follow the law or either
parent's agenda. The recommendation that you mention possibly attempts
to end-run the limitations imposed by Family Code section 3044, but your
persuasive abilities are better directed to a judge if you wish to successfully
argue against heir conclusions. In my experience mental health professionals
have terrific integrity - in the sense that they cannot be bought and
they aren't terribly susceptible of being duped - however, they are
vulnerable to becoming biased about their own system-based views of how
people should behave.
Family Code section 3044 creates a rebuttable presumption against joint legal and joint physical
custody where there is independent evidence of domestic violence (as in
permanent restraining orders for up to five years, as opposed to temporary orders obtained
ex parte that are not upheld at the DV hearing). In order for a judge to issue
orders for joint physical custody, they must find that the other side
has rebutted this presumption. Failure to do so is reversible error. Check
FC section 3044(b)(1) - (7) which lists some of the possible evidence
that a court might properly consider in finding that the presumption against
sole legal and physical custody has been rebutted.
Family Code section 3004 defines joint physical custody as follows:
"Joint physical custody" means that each of the parents shall
have significant periods of physical custody...."
A 50-50 timeshare is de facto joint physical custody, no matter how the
mediator or the court labels it. In my opinion courts are not free call
something sole physical custody and then grant such a significant timeshare
to the mother in your case without making the required 3044 findings.
Make this point to the judge at your upcoming hearing. Make sure he or
she states their findings regarding the rebuttal factors on the record,
and if any of the subparts to subsection (b) apply in your favor, point
this out. For instance, has Mom
completed a batterer's treatment program? [3044(b)(2)]. Has she complied with
the court's orders [3044(b)(6)], meaning she has not re-violated the
restraining orders? Has there been any further acts of domestic violence
Moreover, subsection (e) states: "When a court makes a finding that a party has perpetrated domestic violence,
the court may not base its findings solely on conclusions reached by a
child custody evaluator or on the recommendation of the Family Court Services
staff, but shall consider any relevant, admissible evidence submitted
by the parties." Hence, more is needed that a family court services'
recommend to overcome the presumption.
Judges sometimes feel - in marginal DV cases in particular - that FC section
3044(1)'s reference to "frequent and continuing contact with
both parents" is more important than the DV history and the risks
that such orders imply. Mediators sometimes feel badly that 3044 is too
strict. Some think that the label is what matters, but many cases (especially
in the move-away arena) establish that such labels (i.e., joint custody
or sole custody) do not control. We look instead to the actual timeshare.
The law is clear that documented histories of domestic violence cannot
be ignored where children are concerned. On the other hand, if the Court
makes findings that are substantially supported by the record in your
case in Mom's, this is likely within its "sound discretion"
to find that the 3044 presumption has been rebutted if there is any evidence
to support the trial court decision.
BTW, I recommend you always argue the alternative that best supports your
children together with your (and their) personal safety. In other words,
just because you can cut off the other parent, don't do it unless
it serves your children's interests.
Thurman Arnold, C.F.L.S.