Family Code Section 3044 Is Mandatory: Not Even “Special Circumstances” Allow Trial Courts to Bypass the Statute’s Findings Requirement

If there was ever any wonder about whether trial courts can rebut the presumption set forth in Family Code section 3044 without making the findings expressly required under the statute, a recent decision from the First District Court of Appeal provides a resounding answer:

Absolutely not.

In A.K. v. Superior Court (Oct. 4, 2024, No. A170856) [2024 Cal. App. Unpub. LEXIS 6305], Mother and Father were embroiled in a custody dispute over their young child. Mother had previously obtained a domestic violence restraining order against Father, which named Mother and the child as protected parties.

While the domestic restraining order was still active, the trial court issued a temporary award of custody in favor of Father. The trial court declared that Family Code section 3044 was rebutted, but the court expressly declined to make the findings expressly required by statute—e.g., whether Father had completed a batterer’s program. According to the trial court, “special circumstances” permitted it to rebut the presumption without rendering the requisite findings. The trial court’s intention, it seemed, was to address the presumption at a later time, as it “reserved jurisdiction” over the issue.  

Decker Law, representing Mother, filed a petition writ of mandate in the First District Court of Appeal. The appellate granted the petition and issued peremptory writ in the first instance. The A.K. court confirmed that the findings requirement set forth in Family Code section 3044 is “‘mandatory and the trial court has no discretion in deciding whether to apply it.’” (Quoting Celia S. v. Hugo H. (2016) 3 Cal.App.5th 655, 661.) “At least until the superior court properly considers whether Father has rebutted the section 3044 presumption, Father may not be awarded custody of [the child].”

This opinion underscores the strict application of Family Code section 3044 and the importance of procedural safeguards in child custody decisions, particularly in cases involving domestic violence.

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