Fajota v. Fajota

I.

INTRODUCTION

Elenita L. Fajota appeals from an order of the trial court granting her ex-husband, Romer N. Fajota, joint legal custody of the couple’s three children. According to Elenita, Romer admitted to engaging in acts of domestic violence, and the trial court found that Romer had committed domestic violence against her. Elenita contends that in awarding Romer joint legal custody, the trial court failed to apply the rebuttable presumption set forth in Family Code section 3044. Section 3044 provides that it is not in a child’s best interest to award joint or sole legal and/or physical custody to a parent who has been found to have committed domestic violence against the other parent, the child, or the child’s siblings.

We agree with Elenita that the trial court abused its discretion by failing to apply the mandatory presumption set forth in section 3044 when it determined that the parties would share joint legal custody of the children. We therefore reverse the custody order of the trial court contained in the judgment of dissolution, and remand the matter to the trial court to apply the mandatory presumption in determining the custody of the…