KEITH R. v. Superior Court

We issue a peremptory writ because the family court erroneously has applied the “changed circumstances” standard rather than the “best interest” rule to a move-away order in a child custody case when there has been no final judicial custody determination within the meaning of Montenegro v. Diaz (2001) 26 Cal.4th 249, 258 [ 109 Cal.Rptr.2d 575 , 27 P.3d 289 ] (Montenegro). A domestic violence order under the Domestic Violence Prevention Act (DVPA) (Fam. Code, § 6200 et seq.) is not a permanent custody determination. While it establishes a rebuttable presumption concerning the burden of proof, it does not remove the central element of any initial custody determination: What is in the “best interest” of the minor child based on all the circumstances?

In making this initial custody determination, the family court should give the parties an opportunity to be meaningfully heard, and should not arbitrarily deprive either parent from offering pertinent evidence bearing on the child’s best interest, including evidence regarding the harm that may result from disruption of established patterns of care and emotional bonds.

I

Petitioner Keith R. (Father) and real party in interest…