Filed 8/26/16: pub. & mod. order 9/23/16 (see end of opn)




             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                 FOURTH APPELLATE DISTRICT

                                            DIVISION THREE


CELIA S.,

    Appellant,                                              G052124

        v.                                                  (Super. Ct. No. 13P001238)

HUGO H.,                                                    OPINION

    Respondent.



                 Appeal from an order of the Superior Court of Orange County, Theodore R.
Howard, Judge. Reversed and remanded.
                 Gibson, Dunn & Crutcher, Blaine H. Evanson, Krista Hernandez, Jennafer
M. Tryck, Krista DeBoer, Vania Wang; Family Violence Appellate Project, Jennafer
Dorfman Wagner, Shuray Ghorishi, Erin C. Smith, Nancy K.D. Lemon; Legal Aid
Society of Orange County, Robert Cohen, Yolanda Omana, and Jamie Sanderson for
Appellant.
                 Law Offices of D. Michael Bush and D. Michael Bush for Respondent.
                                      *                 *         *
               Family Code section 3044 establishes a rebuttable presumption that
prevents a trial court from awarding sole or joint physical or legal custody of a child to a
parent who commits an act of domestic violence against the other parent, unless the
offending parent establishes by a preponderance of the evidence that an award of custody
to that parent is in the child’s best interest.1
               Here, the trial court found respondent Hugo H. committed an act of
domestic violence against appellant Celia S., and therefore awarded her sole legal and
physical custody of the couple’s two children because Hugo presented no evidence
showing an award of custody to him was in the children’s best interest. Nonetheless, the
court also awarded Hugo “visitation” consistent with the “50/50 timeshare” arrangement
to which Celia and Hugo agreed nearly a year earlier. Under that arrangement, the
children alternated living with Celia for one week and then Hugo for a week.
               Celia appeals, arguing the trial court may not circumvent section 3044 by
characterizing its order that granted Hugo joint physical custody as an order that merely
awarded him visitation. We agree. The nature of any order must be determined based on
the order’s legal effect, not the label the trial court attaches. Based on the Family Code
definition of “joint physical custody” and the case law applying that definition, we
conclude any arrangement authorizing children to spend roughly equal time with each
parent is a joint physical custody arrangement. The trial court therefore abused its
discretion in awarding Hugo equal time with the children without requiring him to
establish that arrangement was in the children’s best interest. We reverse that portion of
the court’s order and remand for further proceedings.




       1
               All statutory references are to the Family Code.


                                                   2
                                             I

                             FACTS AND PROCEDURAL HISTORY

              Celia and Hugo maintained a romantic relationship for many years, but
never married. They have two children: Christian, age 12, and Jayleen, age 6.
According to Celia, several acts of domestic violence marred their relationship and
eventually led to their separation. In February 2014, Celia and Hugo stipulated to joint
legal and physical custody of their children with a “50/50 timeshare” under which the
children alternated weeks with each parent. The trial court entered the stipulation as an
order.
              In January 2015, Celia invited Hugo to her apartment to have dinner with
her and the children. While Celia prepared dinner in the kitchen, Christian did his
homework at the dining room table and Jayleen took a nap on the living room couch.
Hugo also sat at the dining room table waiting for Christian to finish his homework.
According to Celia, Hugo was watching loud videos on his cell phone that disrupted
Christian. Hugo denies this, and instead testified he simply was playing on his phone
without disturbing anyone.
              When Christian asked Celia for help with his math homework, she came to
the dining room table and set up her laptop computer to look up how to do Christian’s
homework. At that point, Hugo received a phone call and got up from the table to answer
it. Celia sat down in the chair where Hugo had been sitting and worked with Christian on
his homework. According to Celia, Hugo returned to the table after he completed his call
and demanded that Celia give him the chair back. When she refused to move, Celia
claims Hugo grabbed her by the hair and pulled her toward him. Celia then tried to push
Hugo away and he punched her in the ribs or stomach, causing her to lose her breath. An
argument ensued and Celia demanded Hugo leave her apartment. Celia called the police
when Hugo continued to loiter outside the apartment. The police arrived and arrested


                                             3
Hugo for domestic violence after Christian told them he saw Hugo hit his mother. The
police issued an emergency protective order requiring Hugo to stay away from Celia and
the children.2
                 The next day, Celia filed a petition for a domestic violence restraining order
against Hugo and also an order awarding her sole legal and physical custody of the
children. The trial court issued a temporary restraining order and scheduled an
evidentiary hearing.
                 At that hearing, Celia testified Hugo pulled her hair and punched her in the
stomach or ribs when she refused to yield her chair to him. Hugo testified that he did not
pull Celia’s hair or hit her. According to Hugo, Celia came to the dining room table and
started an argument about whether he was talking to other women. He testified he left
the apartment without touching Celia, and then the police arrested him based on
Christian’s false statement that Hugo had punched Celia.
                 Neither child testified at the hearing, but the court received a report from a
social worker who had interviewed both children. Although Christian told the police he
saw Hugo punch Celia, he told the social worker he left to go to the bathroom when Celia
came to the dining room table and he only heard the fight from the other room. But he
also told the social worker he previously saw Hugo spit in Celia’s face. Jayleen told the
social worker she woke up when her parents started to argue and she saw Hugo pull
Celia’s hair and punch her. She also told the social worker she had seen Hugo hit Celia
before and that she was afraid of Hugo when he hit her mother. At the time of these
events, Christian was 10 years old and Jayleen had just turned five.
                 The trial court acknowledged the many conflicts between Celia’s and
Hugo’s testimony, the inconsistencies in the stories Christian told the police and the


       2
             The record does not include any information on how the criminal domestic
violence proceedings against Hugo were resolved.


                                                4
social worker, and the impact Jayleen’s age had on her ability to recollect and recount
what she saw, but the court concluded Celia’s version of the events “hung together
better” and was “more credible.” The court therefore found Celia “is a victim of
domestic violence perpetrated by [Hugo]” and issued a one-year domestic violence
restraining order that required Hugo (1) not to harass, threaten, assault, disturb or contact
Celia or the children, “except in the course of court-ordered visitation with [the
children],” and (2) to stay 100 yards away from Celia, her work and apartment, the
children, and their school. The court also ordered Hugo to complete a 52-week batterer
intervention program.
              As to custody, the court awarded Celia sole legal and physical custody, but
ordered that Hugo “will have visitation with the minor children as the court will find that
is still in the best interest.” The court explained the section 3044 rebuttable presumption
against awarding sole or joint custody to a parent who committed domestic violence
required the court to award Celia sole custody, but the court set a hearing to review the
matter after Hugo completed the 52-week batterer intervention program to determine
whether he could present evidence to rebut the section 3044 presumption.
              Next, the court acknowledged the parties’ current custody arrangement
called for a “50/50 timeshare” with Celia and Hugo having the children in alternating
weeks. The court explained it was “going to leave the order the way it is,” and only
change the location where the parties exchanged the children each week in recognition of
the restraining order’s prohibition against Hugo coming to Celia’s apartment. The
court’s written order awarded Celia sole legal and physical custody, and awarded Hugo
visitation described in an attachment to the order. The attachment was a copy of the page
from the parties’ February 2014 stipulation awarding them joint legal and physical
custody and establishing their 50/50 timeshare. The court crossed out the two provisions
regarding joint legal and physical custody, but adopted the provision concerning the



                                              5
50/50 timeshare without any change other than the location where Celia and Hugo would
exchange the children each week.
              Celia timely appealed the trial court’s decision awarding Hugo a
50/50 timeshare despite the domestic violence restraining order and the award of sole
legal and physical custody to Celia. Hugo did not appeal to challenge the court’s
decision to issue the restraining order.

                                               II

                                           DISCUSSION

A.     Governing Legal Principles on Child Custody and Domestic Violence
              When deciding a petition for a domestic violence restraining order, the
court has broad discretion also to “make an order for the custody of a child . . . that seems
necessary or proper.” (§ 3022; see § 3021; Erika K. v. Brett D. (2008) 161 Cal.App.4th
1259, 1268.) The guiding principle for the court in making any custody or visitation
order is that the order must be in the child’s best interest. (See §§ 3011, 3020, 3040.)
              In this context, the Legislature has found and declared that (1) “it is the
public policy of this state to assure that the health, safety, and welfare of children shall be
the court’s primary concern in determining the best interest of children when making any
orders regarding the physical or legal custody or visitation of children”; (2) “the
perpetration of child abuse or domestic violence in a household where a child resides is
detrimental to the child”; and (3) “it is the public policy of this state to assure that
children have frequent and continuing contact with both parents . . . and to encourage
parents to share the rights and responsibilities of child rearing in order to effect this
policy, except where the contact would not be in the best interest of the child.” (§ 3020,
subds. (a) & (b).)
              To further these policies, section 3044 establishes a rebuttable presumption
that awarding physical or legal custody to a parent who has committed domestic violence


                                               6
is detrimental to a child’s best interest: “Upon a finding by the court that 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 siblings 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 perpetrated domestic violence is detrimental to the
best interest of the child.” (§ 3044, subd. (a).)
              This presumption is mandatory and the trial court has no discretion in
deciding whether to apply it: “[T]he court must apply the presumption in any situation in
which a finding of domestic violence has been made. A court may not ‘“call . . . into
play” the presumption contained in section 3044 only when the court believes it is
appropriate.’” (In re Marriage of Fajota (2014) 230 Cal.App.4th 1487, 1498 (Fajota);
see Christina L. v. Chauncey B. (2014) 229 Cal.App.4th 731, 736 (Christina L.)
[“‘Because a DVPA restraining order must be based on a finding that the party being
restrained committed one or more acts of domestic abuse, a finding of domestic abuse
sufficient to support a DVPA restraining order necessarily triggers the presumption in
section 3044’”].)
              The section 3044 presumption is rebuttable and “‘may be overcome by a
preponderance of the evidence showing that it is in the child’s best interest to grant joint
or sole custody to the offending parent.’” (Christina L., supra, 229 Cal.App.4th at
p. 736; see § 3044, subd. (a) [“This presumption may only be rebutted by a
preponderance of the evidence”]; Keith R. v. Superior Court (2009) 174 Cal.App.4th
1047, 1055 (Keith R.).) The legal effect of the presumption is to shift the burden of
persuasion on the best interest question to the parent who the court found committed
domestic violence. (Christina L., at p. 736.)
              Section 3044 also prohibits the parent who committed domestic violence
from using the statutory preference for frequent and continuing contact with both parents



                                                7
to rebut the presumption, “in whole or in part.”3 (§ 3044, subd. (b)(1); Keith R., supra,
174 Cal.App.4th at p. 1056.) If the trial court determines a parent has overcome the
section 3044 presumption and awards sole or joint custody to a parent who committed
domestic violence, the court must state the reasons for its ruling in writing or on the
record. (§ 3011, subd. (e)(1).)
              “We review custody and visitation orders for an abuse of discretion, and
apply the substantial evidence standard to the [trial] court’s factual findings. [Citation.]
A court abuses its discretion in making a child custody order if there is no reasonable
basis on which it could conclude that its decision advanced the best interests of the child.
[Citation.] A court also abuses its discretion if it applies improper criteria or makes
incorrect legal assumptions.” (Fajota, supra, 230 Cal.App.4th at p. 1497.)

B.     The Trial Court Abused Its Discretion By Effectively Awarding Joint Physical
       Custody Without Requiring Hugo to Rebut the Section 3044 Presumption
              Celia contends the trial court erred by leaving the parties’ 50/50 timeshare
arrangement in place despite finding Hugo had committed domestic violence against her.
According to Celia, section 3044 prohibited the court’s 50/50 timeshare arrangement

       3
                Section 3044 establishes the following nonexclusive list of factors for the
trial court to consider in determining whether the presumption has been overcome:
“(1) Whether the perpetrator of domestic violence has demonstrated that giving sole or
joint physical or legal custody of a child to the perpetrator is in the best interest of the
child. . . . [¶] (2) Whether the perpetrator has successfully completed a batterer’s
treatment program that meets the criteria outlined in subdivision (c) of Section 1203.097
of the Penal Code. [¶] (3) Whether the perpetrator has successfully completed a program
of alcohol or drug abuse counseling if the court determines that counseling is appropriate.
[¶] (4) Whether the perpetrator has successfully completed a parenting class if the court
determines the class to be appropriate. [¶] (5) Whether the perpetrator is on probation or
parole, and whether he or she has complied with the terms and conditions of probation or
parole. [¶] (6) Whether the perpetrator is restrained by a protective order or restraining
order, and whether he or she has complied with its terms and conditions. [¶] (7) Whether
the perpetrator of domestic violence has committed any further acts of domestic
violence.” (§ 3044, subd. (b).)


                                              8
because it effectively awarded joint physical custody without requiring Hugo to present
evidence showing the arrangement is in the children’s best interest. We agree.
              The trial court repeatedly acknowledged its finding that Hugo committed
domestic violence against Celia invoked section 3044’s rebuttable presumption and
prohibited the court from awarding Hugo sole or joint custody of the children unless he
presented evidence showing an award of custody to him was in the children’s best
interest. But Hugo did not even attempt to make that showing, and the court impliedly
found he failed to do so when it acknowledged section 3044 required the court to award
Celia sole legal and physical custody of the children, and it scheduled a review hearing
for a year later to determine whether Hugo could present evidence to rebut section 3044’s
presumption based on his successful completion of a 52-week batterer intervention
program.
              Nonetheless, the trial court’s order effectively awarded Hugo joint physical
custody of the children by maintaining the existing 50/50 timeshare arrangement even
though the court characterized the children’s time with Hugo as “visitation.” Under the
Family Code, “‘[j]oint physical custody’ means that each of the parents shall have
significant periods of physical custody.” (§ 3004; see In re Marriage of Biallas (1998)
65 Cal.App.4th 755, 760 (Biallas) [“Joint physical custody exists where the child spends
significant time with both parents”]; compare § 3007 [“‘Sole physical custody’ means
that a child shall reside with and be under the supervision of one parent, subject to the
power of the court to order visitation”].)
              The Family Code does not define what amounts to “significant” time with
each parent for identifying a joint physical custody arrangement, but case law establishes
guidelines to help answer that question. (In re Marriage of Lasich (2002) 99 Cal.App.4th
702, 715 (Lasich), disapproved on other grounds by In re Marriage of Lamusga (2004)
32 Cal.4th 1072, 1097.) “Where children ‘shuttle[] back and forth between two parents’
[citation] so that they spend nearly equal times with each parent, or where the parent with

                                              9
whom the child does not reside sees the child four or five times a week, this amounts to
joint physical custody.” (Lasich, at p. 715; see People v. Mehaisin (2002)
101 Cal.App.4th 958, 964; Biallas, supra, 65 Cal.App.4th at p. 760 [joint physical
custody exists when children spend four days each week with one parent and three days
with other parent].)
              In contrast, where “a father has a child only 20 percent of the time, on
alternate weekends and one or two nights a week, this amounts to sole physical custody
for the mother with ‘liberal visitation rights’ for the father.” (Lasich, supra,
99 Cal.App.4th at p. 715; Biallas, supra, 65 Cal.App.4th at p. 760 [custody one day per
week and alternate weeks constitutes liberal visitation, not joint custody]; In re Marriage
of Whealon (1997) 53 Cal.App.4th 132, 138, 142 [same].)
              Here, by ordering the children to continue to evenly split their time with
Celia and Hugo one week at a time, the trial court necessarily awarded Hugo joint
physical custody regardless of the label the court attached to the arrangement. The court
apparently believed it complied with section 3044 by awarding Celia sole legal and
physical custody of the children, and describing the children’s time with Hugo as
“visitation.” But in determining the true nature of the court’s order, we must consider the
legal effect of the order, not the label the court attached. (Concerned Citizens Coalition
of Stockton v. City of Stockton (2005) 128 Cal.App.4th 70, 77.) Hugo does not explain
how maintaining the previous arrangement, which provided for joint physical custody
with a 50/50 timeshare, could be characterized as anything other than an award of joint
physical custody. Indeed, the trial court acknowledged it was “going to leave the
[previous] order the way it is.”
              The trial court therefore abused its discretion by failing to properly apply
section 3044’s rebuttable presumption and awarding Hugo joint physical custody without
evidence showing that custody arrangement was in the children’s best interest. (Fajota,
supra, 230 Cal.App.4th at p. 1500 [after trial court found one parent had committed

                                              10
domestic violence against another, court abused its discretion by leaving in place an
earlier order that awarded both parents joint legal custody].)
               We reverse the trial court’s order and remand for further proceedings. On
remand, the court may not award Hugo sole or joint custody because he failed to present
any evidence to overcome section 3044’s presumption, but the court may award Hugo
visitation that does not amount to joint custody because nothing in section 3044 prevents
a trial court from awarding visitation. In doing so, however, the court must comply with
statutory provisions governing a visitation award in proceedings involving allegations of
domestic violence. (See, e.g., § 3031, subd. (c) [“When making an order for custody or
visitation in a case in which domestic violence is alleged and an emergency protective
order, protective order, or other restraining order has been issued, the court shall consider
whether the best interest of the child, based upon the circumstances of the case, requires
that any custody or visitation arrangement shall be limited to situations in which a third
person, specified by the court, is present, or whether custody or visitation shall be
suspended or denied”]; § 3100.) The court also may hear a request from Hugo to modify
custody subject to section 3044’s presumption.

C.       Hugo Forfeited His Challenge to the Sufficiency of the Evidence by Failing to
         Cross-Appeal
               The principal thrust of Hugo’s brief challenges the sufficiency of the
evidence to support the trial court’s finding that he committed domestic violence against
Celia. Hugo contends no objective evidence supported the trial court’s ruling.
Specifically, he argues the description of events Christian provided the police was
inconsistent with the description he provided the social worker, and the court should not
have considered the social worker’s interview of Jayleen because she was only five years
old at the time and would not speak to the social worker without Celia present. Hugo,
however, did not cross-appeal from the trial court’s order, and therefore forfeited this
issue.

                                             11
              “As a general matter, ‘“a respondent who has not appealed from the
judgment may not urge error on appeal.”’ [Citation.] ‘To obtain affirmative relief by
way of appeal, respondents must themselves file a notice of appeal and become
cross-appellants.’” (Preserve Poway v. City of Poway (2016) 245 Cal.App.4th 560, 585;
see Lima v. Vouis (2009) 174 Cal.App.4th 242, 252 [respondent who did not cross-appeal
from order vacating dismissal prevented from challenging validity of order on appeal].)
              Here, Celia appealed from the trial court’s order and challenged the court’s
decision to maintain the 50/50 timeshare arrangement that existed before the domestic
violence incident. She did not raise any issues about the court’s finding that Hugo had
committed domestic violence against her. Hugo appeared in this court solely as a
respondent; he did not file his own appeal to challenge the trial court’s order. The
sufficiency of the evidence to support the court’s domestic violence finding therefore is
not before us and Hugo forfeited all challenges to that finding.

D.     The Appeal is not Moot
              Hugo also contends Celia’s appeal is moot because the one-year domestic
violence restraining order the trial court issued has expired. Not so. Section 3044’s
presumption remains in effect for five years regardless of whether an underlying
domestic violence restraining order has expired. (§ 3044, subd. (a) [“Upon a finding by
the court that a party seeking custody of a child has perpetrated domestic violence . . .
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 perpetrated domestic
violence is detrimental to the best interest of the child” (italics added)].) Moreover, it is
the finding of domestic violence that triggers the presumption, not the issuance of a
restraining order. (Ibid.) Accordingly, even though the restraining order may have
expired, the trial court still may not award Hugo sole or joint legal or physical custody
unless he establishes awarding him custody would be in the children’s best interest.


                                              12
                                             III
                                        DISPOSITION

              The order is reversed and remanded for further proceedings as described in
the last paragraph of section II.B. of this opinion. Celia shall recover her costs on appeal.



                                                   ARONSON, J.

WE CONCUR:



MOORE, ACTING P. J.



IKOLA, J.




                                             13
Filed 9/23/16

                              CERTIFIED FOR PUBLICATION


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA


                               FOURTH APPELLATE DISTRICT


                                        DIVISION THREE


CELIA S.,
                                                        G052124
    Appellant,
                                                        (Super. Ct. No. 13P001238)
        v.
                                                        ORDER MODIFYING OPINION
HUGO H.,                                                AND CERTIFYING OPINION FOR
                                                        PUBLICATION; NO CHANGE IN
    Respondent.                                         JUDGMENT




                  It is ordered that the opinion filed in the above-entitled matter on
August 26, 2016, is hereby MODIFIED as follows:
                  1.     On page 2, the first sentence of the third paragraph, beginning with
“Celia appeals,” delete the entire sentence and replace it with the following sentence:
        Celia appeals, arguing the trial court may not circumvent section 3044 by
        characterizing its order as merely an award of visitation.



                                                 14
              2.     On page 2, the fourth sentence of the third paragraph, beginning with
“Based on the Family Code definition,” delete the word “any” between the words
“conclude” and “arrangement” and replace it with the word “an” so the sentence reads:
       Based on the Family Code definition of “joint physical custody” and the
       case law applying that definition, we conclude an arrangement authorizing
       children to spend roughly equal time with each parent is a joint physical
       custody arrangement.
              3.     On page 2, the fifth sentence of the third paragraph, beginning with
“The trial court therefore abused,” delete the word “that” between the words “establish”
and “arrangement” and replace it with the word “the” so the sentence reads:
       The trial court therefore abused its discretion in awarding Hugo equal time
       with the children without requiring him to establish the arrangement was in
       the children’s best interest.
              4.     On page 4, the first sentence of the first full paragraph, beginning
with “The next day,” delete the word “also” between the words “and” and “an” and
replace it with the word “for” so the sentence reads:
       The next day, Celia filed a petition for a domestic violence restraining order
       against Hugo and for an order awarding her sole legal and physical custody
       of the children.
              5.     On page 4, the second sentence of the second full paragraph,
beginning with “Hugo testified,” delete the word “that” between the words “testified” and
“he” so the sentence reads:
       Hugo testified he did not pull Celia’s hair or hit her.
              6.     On page 4, the first sentence of the final partial full paragraph,
beginning with “The trial court acknowledged” and ending on page 5, delete the word
“stories” between the words “the” and “Christian” and replace it with the word
“versions” so the sentence reads:

                                             15
         The trial court acknowledged the many conflicts between Celia’s and
         Hugo’s testimony, the inconsistencies in the versions Christian told the
         police and the social worker, and the impact Jayleen’s age had on her
         ability to recollect and recount what she saw, but the court concluded
         Celia’s version of the events “hung together better” and was “more
         credible.”
                7.      On page 9, the first sentence of the first full paragraph, beginning
with “The trial court repeatedly acknowledged,” delete the word “invoked” between the
words “Celia” and “section” and replace it with the word “triggered” so the sentence
reads:
         The trial court repeatedly acknowledged its finding that Hugo committed
         domestic violence against Celia triggered section 3044’s rebuttable
         presumption and prohibited the court from awarding Hugo sole or joint
         custody of the children unless he presented evidence showing an award of
         custody to him was in the children’s best interest.
                8.      On page 10, the first sentence of the second full paragraph,
beginning with “Here, by ordering the children,” delete the phrase “one week at a time”
and replace it with the phrase “on alternating weeks” so the sentence reads:
         Here, by ordering the children to continue to evenly split their time with
         Celia and Hugo on alternating weeks, the trial court necessarily awarded
         Hugo joint physical custody regardless of the label the court attached to the
         arrangement.
                9.      On page 10, the third sentence of the second full paragraph,
beginning with “But in determining the true nature,” insert the phrase “to it” at the end of
the sentence so it reads:
         But in determining the true nature of the court’s order, we must consider
         the legal effect of the order, not the label the court attached to it.

                                                 16
              These modifications do not change the judgment.
              Family Violence Appellate Project and Legal Aid Society of Orange
County have requested that our opinion be certified for publication. It appears that our
opinion meets the standards set forth in California Rules of Court, rule 8.1105(c). The
request is GRANTED.




                                                 ARONSON, J.


WE CONCUR:




MOORE, ACTING P. J.




IKOLA, J.




                                            17
