Jaime G. v. H.L. ( 2018 )

Filed 7/31/18
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
JAIME G., B280569
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BF057099)
v.
H.L.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Dean Hansell, Judge. Reversed and remanded.
Los Angeles Center for Law & Justice, Carmen McDonald,
Sarah Reisman, Melissa Viramontes; Gibson, Dunn & Crutcher,
Kahn A. Scolnick, Michael Holecek and Colby A. Davis for
Defendant and Appellant.
No appearance for Plaintiff and Respondent.
____________________
A mother appeals from a child custody order. The family
court ruled Father was a domestic abuser but then awarded child
custody jointly to Father and Mother, with Father getting most of
the visitation time. A statute applies to this situation. The
Legislature passed this statute to move courts to give heavier
weight to the existence of domestic violence. The statute requires
family courts to make specific findings, in writing or on the
record, about seven factors, including whether the perpetrator
has successfully completed a batterer’s treatment program. The
trial court was in the midst of stating its reasons on the record
when the conduct of counsel terminated the hearing. Courts
possess full authority to maintain orderly control of hearings.
When oral statements on the record cannot be completed,
however, the statute requires the trial court to “state its reasons
in writing . . . .” (Family Code Section 3011, subd, (e)(1).) (All
statutory citations are to the Family Code.) We reverse and
remand for the family court to hold a new hearing that complies
with this statutory requirement about specific findings on each of
the seven statutory factors.
2
FACTUAL AND PROCEDURAL BACKGROUND
This child custody dispute over seven-year-old Matthew
was between biological parents H.L. and Jaime G. There were
three substantial court hearings.
A. The First Hearing
The first substantial hearing was on September 19, 2016.
As a self-represented litigant, Father petitioned to establish a
parental relationship. Neither Mother nor Father had a lawyer
at this hearing.
The court methodically proceeded through a comprehensive
agenda. It first established parentage and jurisdiction. It
queried the parents about living and working arrangements.
Father lived in a house, sleeping in a bunk bed in a room with
four others. Father and Matthew were in the top bed, while
Father’s partner Clara slept below with her two children. Father
had lived there for a year. He paid $500 in monthly rent and
worked full time in shipping. Matthew attended an elementary
school a 10-minute walk away. Father took Matthew to school
and picked him up every day.
The court asked Mother for similar information. She lived
in a house with others; she was unsure who owned it. Mother
shared her bedroom with her boyfriend.
3
Mother and Father lived about 45 minutes apart. Father
owned a car. Mother did not.
Mother had three children besides Matthew, ages nine, 10,
and 12. They were in Guatemala. Mother last saw her other
children in 2007.
The court tried to establish Mother’s employment situation.
Mother was unemployed and claimed that, “due to the court
appearances, I was laid off.” After Mother said she was not
working “because of this court proceedings,” the court asked
when she was last in court. Mother replied “I’ve never been.
This is the first time.” The court, evidently puzzled by the
contradiction, repeated the question. The court asked when
Mother had last been to “any court,” and again Mother replied,
“[n]o other time.”
The court asked how long Mother had lived at her current
address. Mother said nearly three months. Before that, Mother
reported living at a different address for two years, and before
that for six months at a third address. Before the third address,
she had lived at a fourth address for “like a year.”
The court asked Mother why she had not seen Matthew for
three months. Mother said she called about Matthew, but Father
told her Matthew did not want to speak with her. Then one day
Father “told me to come because the child was sick and when I
arrived he gave me court documents and he pushed me, almost
4
knocked me down. I was scratched up. And at that time I also
called the police.”
The court asked Father why he had not allowed Mother to
see Matthew. Father’s responses were contrary to Mother’s:
Father said, “She hasn’t called me at all.” Father said he learned
Mother was high on drugs and had abandoned Matthew with a
babysitter for three days, and so he went to Long Beach to get
Matthew. Father said Mother would abandon Matthew while
Mother and her boyfriend went in a car to smoke weed. Further,
Mother would “go into the bathroom with a pipe all night.”
The court asked Mother if she smoked marijuana in the
house when Matthew was present. Mother denied smoking
marijuana and then said, “When I was young, yes, many years
ago I smoked marijuana.”
The court examined school documents showing Matthew’s
school attendance was good when Matthew was with Father.
When Matthew was with Mother, however, the court found
Matthew experienced “quite a high absence rate” at school.
The court said that its concern was with the best interest of
the child, and that Matthew should have regular and continuous
contact with both parents. “Matthew is only seven. He is not
going to be an adult for 11 more years. That’s a long time. And it
will be critical for you both to get along with each other to co-
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parent as much as you can with each other in order to make sure
that Matthew has a good education.”
The court then ordered legal custody (“that is who has
responsibility for making decisions about Matthew’s well-being,
his education, his health and so forth”) would be joint: shared
equally between Mother and Father. The court ordered physical
custody as follows. Matthew would remain with Father during
the school week, but the court stated Mother must get regular
access to Matthew. The situation was complicated because only
Father had a car, and the parents lived 45 minutes apart. Most
visitation thus would have to be on weekends because Matthew
was in school during the week. The court gave Mother Saturday
and Sunday visitation, with Father ordered to provide
transportation. As for school holidays and other holidays, the
court gave Mother more access to compensate for Father’s
primary physical custody. The court ordered alternating weeks
of custody during Matthew’s summer vacation.
Following this hearing, Mother retained counsel, but
Father did not.
B. The Second Hearing and Following Events
The second hearing was on November 9, 2016. Father
again represented himself. Mother now had a lawyer, who
objected she had not received service of a declaration Father was
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presenting to the court. The court continued the hearing to
permit Mother to examine and to respond to Father’s declaration.
This November hearing itself was not substantial, but
there were three written filings before and after it: Mother’s
request for a domestic violence restraining order, Father’s
response to Mother’s request, and Mother’s counsel reply to
Father’s declaration.
These three documents detailed Mother and Father’s
relationship with their son Matthew. In these filings, the parents
continued to present sharply conflicting accounts, as follows.
In her request for a domestic violence restraining order,
Mother described her injuries as “lost my balance, scrape on my
chest.”
In the attached declaration, Mother stated “I need a
restraining order against [Father] because [Father] continues to
berate me in front of our son, has scratched me across my chest,
forcefully pushed me, physically removed our son from my home
without returning him, has threatened me on multiple occasions
to take our son to Guatemala.”
Mother’s declaration recounted meeting Father in
Guatemala in 2002. They lived together from then until 2011.
Mother wrote the two separated “due to [Father’s] violent
behavior towards me.”
7
Mother wrote the most recent incident of Father’s abuse
was on October 1, 2016, when Father drove erratically towards
Mother and Matthew. Father berated Mother in front of
Matthew. Mother repeated her charge that, on August 6, 2016,
Father pushed her and scratched her chest. Mother claimed
Father had a history of abusing her.
Father responded to Mother’s filing on November 2, 2016.
Father swore all of Mother’s allegations against him were “lies.”
Father wrote he wanted sole custody of Matthew because Mother
was using crystal methamphetamine. Mother told Father she
was going to start treatment for her drug problem. Mother’s
babysitter called Father to say that Mother left Matthew with the
babysitter for three days, that Mother was high on drugs then,
and that Mother is “really high all the time.” Father met with
Mother and told her, “you are going down the wrong path, you’re
high right now, we will talk when you are better. [Mother] stays
quiet and I leave.”
Father denied trying to run Mother over, and denied
hitting or pushing Mother. Father said Mother hit and scratched
him. He wrote that on August 7, 2016 Mother called police, who
first handcuffed Father but then released him without arrest
after interviewing both parents. Father claimed police told
Mother to stay away from the general area of Father’s house.
8
The police gave Father a business card with the officers’ names
and instructed Father to call if Mother returned.
Father claimed the relationship with Mother ended in 2011
because she was with another man. Father claimed Mother
never sent money or called the couple’s three children in
Guatemala, and Mother told people in the United States she has
only one child: Matthew.
Father’s declaration claimed Mother became mentally
unstable when high on drugs. Father described an episode where
Mother left the house with Matthew in the car because Mother
“was afraid that helicopters and police were searching for her and
her friends.” Father ascribed this episode to Mother’s use of
methamphetamine.
Father submitted pictures of clothes and a book bag he
bought for Matthew, as well as a photo of “some meth that is
[Mother’s].” The photos include pictures of a young boy smiling
and showing off clothes and a book bag. Father also attached a
photo of Mother drinking a beer, as well as the “business card
from the police officer who arrived at the altercation on 8/7/16.”
Father submitted a Los Angeles Police Department business card
listing two officers’ names. The back of the police card contains
this writing: “ADV. TO COMPLETE CUSTODY PROCESS
OVER CHILD IN COMMON.”
9
On November 22, 2016, Mother’s counsel filed a reply to
Father’s declaration. This brief alleged Father was not
complying with court orders because he was consistently late and
sometimes did not drop Matthew off for visits at all. Mother
denied using crystal methamphetamine and denied Father
helped Mother with rent or food. Mother blamed Father for
Matthew’s school absences, saying Father failed to drop Matthew
off on Monday mornings. “It was difficult for me to take our son
to school on a couple of occasions when I did not have a car as
well.” Mother attached documents she claimed supported her
side of the story.
C. The Third Hearing
The third hearing was on December 2, 2016. The court
showed conscientious familiarity with the parties’ filings by
summarizing their written contentions. Mother then testified
orally, describing how, when she tried to take Matthew with her,
Father tried to get Matthew away from her. Father “pushed me
and tried to knock me down to the floor, and he scratched me on
my neck.” Mother called police, who came to the scene but did
not arrest Father. Mother described a threat Father made to her,
and her lawyer asked Mother whether she believed Father’s
threat. Mother said that, “[h]onestly, I didn’t take it very
seriously.” Counsel asked Mother if she thought Father would
10
continue to abuse her without a restraining order. Mother said
“[m]aybe not physically but verbally. Yes. And psychologically.”
The court then heard from Father, who denied Mother’s
charges of abuse and said Mother was lying. Father explained
Mother was not getting Matthew appropriate medical care.
Father had to take Matthew to a medical clinic because Mother
repeatedly texted Father she would do it but she failed to follow
through. After Father took Matthew to the clinic, Mother lacked
interest in Matthew’s medical condition.
The court granted the request for the domestic violence
restraining order, with modifications, setting the term at 24
months.
Mother’s counsel cited the above-mentioned section 3044,
noting it creates a presumption Mother should have sole custody
of Matthew. The court agreed this presumption applied and it
awarded sole physical and legal custody to Mother. The trial
court also ruled Father was to have visitation rights as set forth
in the court’s September 19, 2016 order. This order gave most of
the visitation time to Father.
Mother’s counsel requested child support. After some
discussion, Mother’s counsel asked to continue the child support
issue to a future date. The court agreed.
The parties then engaged over the terms of Father’s
visitation. Mother’s counsel again cited section 3044. The trial
11
judge remarked the September 19th hearing had been extensive
and none of the evidence in the current hearing had changed
what would be in Matthew’s best interest.
Following this hearing, there were more filings.
On December 11, 2016, Mother’s counsel filed a motion for
reconsideration of the court’s order. Father responded the next
day, filing a new declaration denying Mother’s claims and
asserting Mother was a liar and a poor parent, with attached
exhibits.
D. The Fourth Hearing
The fourth hearing was on January 13, 2017. The court
ruled Mother’s request for reconsideration was untimely but the
court reconsidered its order on the court’s own motion.
In its reconsideration, the court emphasized its earlier
determination “about Father’s suitability to be a good father and
Mother’s much more limited suitability to be a good mother.”
The court then tentatively modified its earlier order, but
not in the way Mother requested. Instead of curtailing Father’s
visitation schedule, the court altered Mother’s sole custody by
specifying that physical and legal custody of Matthew would be
joint. The court invited oral argument on its tentative ruling.
Mother’s counsel again cited the section 3044 presumption.
The court responded, “I will look at [section] 3044 right now.”
12
The court stated its ruling that Father was more suitable and
stable than Mother. The court acknowledged it issued a domestic
violence restraining order but observed “the standard is not a
very high standard.” The court remarked it had issued the order
to address “relations between Mother and Father.” “And we have
many situations where the parents just, you know, there are
issues. There is a need to keep one parent away from the other
and where they crossed over a line justifying the issuance of a
DVRO [domestic violence restraining order].”
The court explained its visitation order “was based on the
fact that Father is a good father to the children.” “I agree with
[Mother’s counsel]. [Section] 3044 applies in this situation, but
[section] 3044 doesn’t bar visitation. . . . But you still then can go
on from there and determine whether [the section 3044
presumption] can be overcome. [Section] 3044[, subdivision] (b),
for example, talks about the factors . . . that one can take into
consideration in overcoming a presumption with that. And here,
the most important thing is to look who is the more suitable
parent . . . , despite the issues in the DVRO, which this court
granted, . . . [and] despite that Father remained the more
appropriate parent, the better parent for the minor.”
Mother’s counsel then argued Father “did not rebut the
[section] 3044 presumption.” The court disagreed, repeating it
had gone through a section 3044 analysis and that there was no
13
reason to modify the court’s visitation order. Mother’s counsel
interrupted the court, which again repeated that it had spent
time with counsel “going through [section] 3044.”
The court reiterated its deliberation about who was the
more suitable parent, about which home was more stable, and
which person was more attentive to Matthew’s educational and
health care needs. The court said that Father’s home was much
more stable and Father was more attentive to Matthew’s needs
concerning education, stability, and having a safe and
comfortable home. Mother’s home, the court concluded, was “less
stable and was not able to provide those types of things.”
Mother’s counsel then asked if the court had considered the
Father’s domestic violence in rendering its decision. The court
replied, “[i]ndeed the court did consider that [factor] about the
domestic violence.” The court balanced that presumption against
the importance of a stable and safe home for Matthew.
Mother’s counsel then asked the court to “walk through the
factors of . . . [section] 3044 and tell me your findings for each
factor.” The court agreed to do so. The court began with section
3044, subdivision (b)(1), which the court said was the primary
factor in this case: the best interest of the child. Because
Mother’s counsel repeatedly interrupted the court, however, the
court finally announced “this hearing is over because you
14
continue to interrupt.” The court ended the hearing without
further argument from counsel.
The court orally reiterated its ruling was based on section
3044 and that the court was “taking into account the factors in
[section] 3044[, subdivision (b)].” The court concluded “the
presumption that in [section] 3044[, subdivision (a)] has been
overcome in this situation by Father being the far better parent
to raise the child than Mother.”
The trial court’s January 13, 2017 minute order
summarized the hearing. “The court, on its own
motion, . . . modifies its order of December 2, 2016. The court
awards the parties joint legal and joint physical custody of the
minor child Matthew . . . . The court made its findings under . . .
[section] 3044[, subdivision] (b) and discussed that it was
required to consider the best interests of the minor in making
custody and visitation orders. The court notes that trial is
currently scheduled for February 23, 2017 at 8:30 a.m. . . . .”
In sum, after reconsidering the situation, the family court
gave the parents joint custody of their son but decided to retain
the visitation schedule to which Mother now objects.
15
THE STATUTE: SECTIONS 3044 AND 3011
For this appeal, two sections of the Family Code are key:
sections 3044 and 3011. The text of these sections is vital.
A. Section 3044: A Rebuttable Presumption After a Domestic
Violence Finding
Subdivision (a) of section 3044 sets forth the rebuttable
presumption. Subdivision (b) lists seven factors the court “shall”
consider when determining whether that presumption has been
overcome. These seven factors are the “section 3044 factors.”
The relevant text of section 3044 is as follows:
“(a) 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 . . . , 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 . . . . This
presumption may only be rebutted by a preponderance of the
evidence.
“(b) In determining whether the presumption set forth in
subdivision (a) has been overcome, the court shall consider all of
the following factors:
16
“(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. In
determining the best interest of the child, the preference for
frequent and continuing contact with both parents, as set forth in
subdivision (b) of Section 3020, or with the noncustodial parent,
as set forth in paragraph (1) of subdivision (a) of Section 3040,
may not be used to rebut the presumption, in whole or in part.
“(2) Whether the perpetrator has successfully completed a
batterer’s treatment program . . . .
“(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.
17
“(7) Whether the perpetrator of domestic violence has
committed any further acts of domestic violence.” (§ 3044,
subds. (a) & (b).)
B. Section 3011: A Requirement of a Written or Record
Statement of Reasons
Subdivision (e)(1) of section 3011 makes the following
provision, to which we add emphasis.
“Where allegations about a parent pursuant to subdivision
(b) [concerning abuse by one parent against another] . . . have
been brought to the attention of the court in the current
proceeding, and the court makes an order for sole or joint custody
to that [allegedly abusive] parent, the court shall state its reasons
in writing or on the record. . . .” (§ 3011, subd. (e)(1), italics
added.)
DISCUSSION
We review custody and visitation orders for an abuse of
discretion, and apply the substantial evidence standard to the
trial court’s factual findings. (Celia S. v. Hugo H. (2016) 3
Cal.App.5th 655, 662.) On issues of statutory interpretation,
however, review is de novo.
18
Mother makes three arguments on appeal. We treat them
in turn.
A. The Family Court Must State its Specific Reasons on the
Record or in Writing
Mother’s central claim of error is that the trial court
improperly applied section 3044. To repeat, section 3044 creates
a rebuttable presumption against awarding custody to a parent
who has committed domestic violence. When a trial court decides
the evidence does indeed rebut this presumption, the statute
requires the court to state the reasons for this decision. This
statement of reasons must be “in writing or on the record.”
(§ 3011, subd. (e)(1).)
This “in writing or on the record” requirement is most
reasonably interpreted to require specific mention of each of the
seven section 3044 factors. (See § 3044, subd. (b)(1) - (b)(7).)
We review de novo questions of statutory construction. In
doing so, we must ascertain the intent of lawmakers so as to
effectuate the statute’s purpose. (E.g., Apple Inc. v. Superior
Court (2013) 56 Cal.4th 128, 135.)
The purpose of the rebuttable presumption statute is to
move family courts, in making custody determinations, to
consider properly and to give heavier weight to the existence of
19
domestic violence. (E.g., Sen. Com. on Judiciary, Analysis of
Assem. Bill 840 (1999-2000 Reg. Sess.) July 13, 1999.)
By enacting the seven factors in the rebuttable
presumption statute, the Legislature created a mandatory
checklist for family courts. Mandatory checklists can improve
professional decisionmaking for professionals as diverse as
surgeons and pilots. (See, e.g., Atul Gawande, The Checklist
Manifesto: How To Get Things Right (2009) pp. 32-47, 114-157,
175-182, 187-193.)
A reporter for the American Law Institute’s family law
project made this point about the need for written findings. “The
[American Law Institute’s] Principles make presumptions about
domestic abuse that are . . . instructive. They require a court to
assume that if a parent . . . inflicted domestic abuse . . . , limits on
the first parent’s access are necessary to protect the child or the
other parent from harm. . . . Written findings are required to
support any allocation of custodial or decision-making
responsibility to a parent, which justify allocation in light of the
assumed dangers of these behaviors.” (Katherine T. Bartlett,
Preference, Presumption, Predisposition, and Common Sense:
From Traditional Custody Doctrines to the American Law
Institute’s Family Dissolution Project (2001) 36 Fam. L.Q. 11, 23.)
20
Presumptions are used in this context because courts have
historically failed to take sufficiently seriously evidence of
domestic abuse. (Ibid.)
“Without such assumptions, it has been too easy for courts
to ignore evidence of domestic abuse or to assume that it will not
happen again. As with the limitations on consideration of the
gender of a parent or child, presumptions function to counteract
the proven tendency of some courts to make judgments based on
ignorance or stereotypes.” (Ibid.)
Mandatory checklists can seem bothersome to experienced
professionals but the Legislature’s intent was to require family
courts to give due weight to the issue of domestic violence. The
requirement that courts make specific findings “in writing or on
the record” furthers this legislative goal. (Cf. American Law
Institute, Principles of the Law of Family Dissolution: Analysis
and Recommendations (2002) ch. 1, topic 3, § 1.02, com. a, p. 97
[“The reason for the requirement of written findings[:]
. . . Fidelity to the policies set forth in the governing law is
encouraged by requiring the decisionmaker to articulate findings
that explain why those policies require a result that is different
from the one the rule itself would ordinarily impose. The
additional requirement that the findings be written facilitates
appeals grounded on those policies. . . . Not only is meaningful
appellate review more likely in that case, it is also essential to
21
the creation of the body of precedent necessary for the system of
rebuttable presumptions to produce consistent and predictable
results. Finally, any effort to study and evaluate the operation of
a system of rebuttable presumptions is feasible only if the
physical record of cases in which the decisionmaker found a
governing presumption rebutted contains the findings upon
which the rebuttal was based. Such studies are necessary to
determine whether the applicable rule is consistent and
predictable in application, or whether amendment of the rule or
its application is in order.”] (ALI Principles).)
The family court in this case began stating specific findings
on the record but was unable to complete that statement.
Omissions remain that raise questions.
For instance, subdivision (b)(2) of section 3044 requires
courts to consider whether the domestic violence perpetrator has
successfully completed a batterer’s treatment program.
In this case the trial court awarded custody to Father,
whom the court found was a batterer. The court, however,
imposed no batterer’s treatment program on Father. Why? We
do not know. Sound logic may support a deliberate and
thoughtful choice on this score. Or the court simply may have
overlooked the statutory suggestion of such a program.
Mother’s counsel was not helpful in assisting the trial court
complete this statutory obligation. Counsel repeatedly
22
interrupted the court, even after the court politely asked counsel
to stop interrupting. The transcript gives context.
When the court invited oral argument on its tentative
ruling, Mother’s counsel cited the section 3044 presumption. The
court responded “I will look at [section] 3044 right now.”
“The Court: . . . And based on the history since last time
was not the first time that the courts have dealt with the two
parents and obtained information and concluded that—
“[Mother’s Counsel]: But those—
“The Court: Please don’t interrupt -- that Father is a more
suitable father than Mother is a suitable mother.”
Mother’s counsel immediately interrupted again, and the
Court stated “can I ask that you not interrupt me. You’ve done
that twice.”
The court continued to state the basis for its ruling Father
was more suitable and stable than Mother. The court
acknowledged it had issued a domestic violence restraining order
but observed “the standard is not a very high standard.” The
court remarked it had issued the order to address “relations
between Mother and Father.” The court commented its visitation
order “was based on the fact that Father is a good father to the
children.” “I agree with [Mother’s counsel]. [Section] 3044
applies in this situation, but [section] 3044 doesn’t bar visitation.
It simply says if you’re looking at the person who . . . has
23
perpetrated domestic violence . . . that that person should not
have a presumption of custody or visitation.” “But you still then
can go on from there and determine whether [the section 3044
presumption] can be overcome. [Section] 3044[, subdivision (b)],
for example, talks about the factors . . . that one can take into
consideration in overcoming a presumption with that. And here,
the most important thing is to look who is the more suitable
parent . . . , despite the issues in the DVRO, which this court
granted, . . . [and] despite that [section] Father remained the
more appropriate parent, the better parent for the minor.”
Mother’s counsel then argued Father “did not rebut the
3044 presumption.” When counsel finished her argument, the
trial judge attempted to respond:
“The Court: . . . [D]on’t forget what I just said; that the
granting of sole physical and legal custody was improvident . . .
and that’s why the change was . . . made. That’s why I have gone
through the analysis I just did based on both [section] 3044.
“[Mother’s Counsel]: Your Honor, may I ask you—
“The Court: Ma’am, may I ask you.
“[Mother’s Counsel]: —what your factual basis is.
“The Court: Ma’am, may I ask you again. This is now the
third time I have had to ask you not to interrupt me.”
24
The trial court stated it had gone “through [section] 3044”
and that there was no reason to modify the court’s visitation
order.
At this point, the transcript degenerates into elliptical
sentence fragments as the court and counsel speak at the same
time. Ultimately the court stated “[t]his is now the fifth time I
am in the middle of talking and in the middle of it, you interrupt
me.”
The court reiterated its deliberation about who was the
more suitable parent, about which home was more stable, and
which person was more attentive to Matthew’s educational and
health care needs. Mother’s home, the court concluded, was “less
stable and was not able to provide those types of things.”
Mother’s counsel then asked if the court had considered the
Father’s domestic violence in rendering its decision. The court
replied, “[i]ndeed, the court did consider that [factor] about the
domestic violence. . . . That is a factor that the court had to
balance . . . but balance it against the importance of . . . minor
child . . . having a stable, safe home, and one that would be
attentive to all of the needs that the court’s already articulated
today.”
Mother’s counsel then asked the court to “walk through the
factors of the . . . [section] 3044 and tell me your findings for each
factor.”
25
The court agreed to do so.
The court began with section 3044, subdivision (b)(1),
which the court said was the primary factor in this case: the best
interest of the child
As the court was responding to counsel’s request, however,
counsel again interrupted the court.
This interruption prompted the court to state “this hearing
is over because you continue to interrupt.” The court ended the
hearing without further argument from counsel.
The trial court has many options for coping with
intransigent counsel. The court can conclude oral argument and
then can state its specific findings on the record. (Cf. ALI
Principles, supra, com. b, pp. 97-98 [“The most straightforward
method for complying with the requirement of written findings is
an opinion or memorandum decision issued by the decisionmaker,
ordinarily a judge in a judicial proceeding. That is not, however,
the exclusive method for compliance. In some jurisdictions trial
judges may dictate findings to a court reporter whose transcript
of them is then included in the court’s case file without charge to
the parties, and without regard to whether a more complete
transcript of the proceedings is later prepared. Such a system
satisfies the requirement of written findings imposed by these
Principles. It does so because it requires the decisionmaker to
articulate the specific factual findings relied upon to justify
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departure from the rule, and it produces an accessible record for
study and for appellate review of whether the findings satisfy the
substantive standard required for exceptions to the rule.”].)
If the court opts to end the hearing before completing a
record statement of the seven section 3044 factors, however, the
statute requires the court’s statement of reasons about these
seven specific factors to be completed in writing. (See § 3011,
subd. (e)(1).)
We reverse and remand for the family court to hold a new
hearing and to provide this statement of specific reasons.
B. The Family Court Considered the Issue of Domestic Abuse
Mother’s second argument is that the trial court failed to
consider the issue of domestic abuse when deciding custody. This
is inaccurate. The trial court extensively considered this issue.
But because we reverse and remand for a statement of reasons on
the record or in writing, we leave the extent of reconsideration of
this issue to the discretion of the trial court.
C. Mother Is Not Entitled to Sole Custody at This Time
Mother’s final argument is that this court immediately
should grant her sole custody. This argument fails. On remand,
the trial court shall document its analysis of this case, taking
express account of the seven section 3044 factors. The trial court
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is best situated to determine the matter of custody in the first
instance.
DISPOSITION
The order is reversed and the case is remanded to the trial
court for a new hearing that complies with the statutory
requirement of an express statement of reasons that specifically
mentions each of the seven section 3044 factors. Each side shall
bear its own costs on appeal.
WILEY, J.*
We concur:
PERLUSS, P. J.
ZELON, J.
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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