Recent Family Law Cases

FAMILY LAW (Through 05/27/25)
By:  Andrew Botros, CFLS, CALS

The precise holdings in a given case are bolded. Auther’s note is italicized.

In re Marriage of J.G. & K.G.
05/02/2025 CA 3: C100075 – Earl, P.J.
https://www4.courts.ca.gov/opinions/documents/C100075.PDF

In this case, the Court of Appeal held that a trial court may not rely on the parties’ stipulation to award joint custody unless and until the perpetrator successfully rebuts the Family Code section 3044 presumption. 

Facts

The marriage dissolved against a backdrop of domestic violence: after a 2019 incident, a bench trial in 2021 produced an express finding that Father had abused Mother. That finding triggered Family Code section 3044’s rebuttable presumption against awarding him any custody. Nevertheless, the trial judge immediately ratified the parties’ joint-custody deal, remarking that “the parties agreed to joint legal custody, despite the … § 3044 presumption. Hearing no objections … the Court reaffirms the joint legal custody agreement.” Father was ordered to complete anger-management and co-parenting classes and to submit to alcohol testing but, critically, the court never walked through § 3044(b)’s seven-factor test or declared the presumption rebutted.

A dissolution judgment entered in December 2022. Three months later Mother filed a custody-modification request, arguing that Father had never complied with the required programs. The new trial judge acknowledged that the domestic-violence finding still triggered section 3044, yet seemed persuaded by the parties’ two-year history of sharing the children. She sent the matter to child-custody recommending counseling.

The counselor reported back bluntly: “Based upon the current information available, it does not appear that Father has engaged in services which would overcome the rebuttable presumptions of … [section] 3044.”  At the October 5 2023 hearing Mother pressed that point, but Father insisted proof was “completely unnecessary” because Mother had previously agreed to joint custody. The court sided with Father. It declared the existing orders “remain in the children’s best interest,” added that it was “troubling” Mother wanted to undo her earlier deal. 

Analysis

The Court of Appeal concluded that the record did not support the trial court’s finding that the section 3044 presumption had been rebutted. The panel reiterated that section 3044 is “mandatory and the trial court has no discretion in deciding whether to apply it.” Once triggered, “the court must determine—putting its findings on the record—the presumption has been overcome before it can award sole or joint … custody to the perpetrator,” and “the court’s failure to do so … is alone sufficient to warrant reversal.” The Court of Appeal held that the parties’ agreement alone to share custody is not enough to overcome the presumption. Doing so not only ignores the children’s best interest, but section 3044(b) explicitly forbids the trial court “from considering, in whole or in part, the preference for frequent and continuing contact with both parents in order to rebut the presumption.”

Because neither judge ever made the required factor-by-factor findings, acceptance of the parents’ stipulation could not substitute for the statutory analysis. As the opinion explains, “when the section 3044 presumption is triggered, the court may not rely on the parties’ stipulation to award joint custody unless and until the perpetrator successfully rebuts the presumption.”  

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In re Marriage of A.M. and R.Y.
4/30/2025 CA 4/1: D084344 – Buchanan, J.
https://www.courts.ca.gov/opinions/documents/D084344M.PDF

In this case, the Court of Appeal reversed the denial of a DVTRO, holding the trial court erred by concluding the petitioner failed to present sufficient evidence of abuse under DVPA. 

Facts

The parties, A.M. and R.Y., married in 2019 and separated four years later. Their dissolution judgment incorporated a marital settlement agreement (MSA) awarding A.M. sole legal and primary physical custody of their daughter, and supervised visitation to R.Y. Shortly after entry of judgment, A.M. sought an immediate ex parte DVTRO against R.Y., alleging ongoing psychological and emotional abuse, sexual coercion, aggressive physical conduct, intimidation, harassment, and coercive control—both during and after their marriage.

In her declaration accompanying the DVTRO request, A.M. described numerous incidents of abuse by R.Y., including coerced sexual acts, unwanted physical contact, emotional harassment, intimidating and threatening behaviors in their daughter’s presence, aggressive confrontations about custody and financial matters, and repeated violations of boundaries set forth in their MSA. The declaration included text and email exchanges.

The trial court denied the DVTRO the same day it was filed. The trial court checked preprinted boxes on the Judicial Council form indicating that A.M. had provided insufficient proof of past abuse and inadequate details about recent incidents. The trial court also handwrote a note suggesting the allegations primarily revolved around contentious divorce and custody disputes.

Analysis

On appeal, R.Y. first argued the denial of the DVTRO was neither appealable nor reviewable, claiming mootness due to the temporary nature of such orders. The Court of Appeal disagreed, holding explicitly that “[a]n order denying a DVTRO is appealable as an order refusing to grant an injunction” under Code of Civil Procedure section 904.1, subdivision (a)(6). The Court explained the appeal was not moot because the permanent DVRO hearing had not yet occurred, stating, “we could still grant effective relief by…reversing the trial court’s order and directing it to issue a DVTRO pending a noticed hearing.”

Turning to the merits, the Court of Appeal concluded the trial court erred by dismissing A.M.’s allegations as insufficient. Further, it stressed that at the preliminary DVTRO stage, courts must assume petitioners’ credible allegations are true unless inherently implausible. Notably, however, the Court of Appeal did not “decide whether or when a trial court may deny a DVTRO on credibility grounds” because this record did not “disclose that the court had any basis to doubt A.M.’s allegations.” This implies that the trial court may deny a facially adequate DVTRO if the Court had, for instance, made prior adverse credibility findings against the petitioner. 

The Court of Appeal however noted that even if there was a facially adequate showing of abuse, this did not “divest[] the trial court of discretion to deny the DVTRO.” The Court of Appeal ultimately concluded that even “when a DVRO petitioner has made a facially adequate showing of past abuse on the papers, the trial court still has discretion to conclude that the circumstances do not warrant ex parte relief pending a noticed hearing.”

The Court of Appeal then articulated specific factors trial courts must evaluate when determining whether interim protection is warranted under the “totality of the circumstances”:

• The seriousness and recency of the alleged past abuse;
• Whether the alleged abuse represented an isolated incident or was part of a pattern;
• The likelihood of recurrence;
• The nature of the parties’ relationship;
• The immediacy and seriousness of any threat;
• Any changed circumstances; and
• Any other relevant factors.

Applying these principles, the Court of Appeal determined the trial court’s brief reasoning—that the allegations merely reflected divorce-related disagreements—was inadequate: “The court may not deny ex parte relief at the DVTRO stage solely because otherwise sufficient allegations of abuse may have arisen in the context of a family law dispute.” Notably, “[w]henever a court declines to grant a DVTRO to a petitioner who has made a facially sufficient showing of abuse, its statement of reasons must reflect consideration of the fundamental purpose of the DVPA to prevent recurring acts of abuse.” The Court of Appeal suggested that the Judicial Council form be revised to allow for a court to find “based on the totality of circumstances that a DVTRO is not necessary to protect the petitioner or others for whom the petitioner is seeking protection from further acts of abuse pending the noticed hearing.” Because the trial court had failed to apply the appropriate “totality of the circumstances” standard and failed to state valid reasons explicitly, the appellate court reversed and remanded. On remand, the trial court must reconsider the DVTRO request, expressly applying the totality of circumstances factors and clearly articulating valid reasons, consistent with the DVPA’s protective purpose, if it again denies immediate protection.