Celia S. v. Hugo H. CA4/3

Family Code section 3044 establishes a rebuttable presumption that prevents a trial court from awarding sole or joint physical or legal custody of a child to a parent who commits an act of domestic violence against the other parent, unless the offending parent establishes by a preponderance of the evidence that an award of custody to that parent is in the child’s best interest.

Here, the trial court found respondent Hugo H. committed an act of domestic violence against appellant Celia S., and therefore awarded her sole legal and physical custody of the couple’s two children because Hugo presented no evidence showing an award of custody to him was in the children’s best interest. Nonetheless, the court also awarded Hugo “visitation” consistent with the “50/50 timeshare” arrangement agreed upon by Celia and Hugo nearly a year earlier. Under that arrangement, the children alternated living with Celia for one week and then Hugo for a week.

Celia appeals, arguing the trial court may not circumvent section 3044 by characterizing its order as merely an award of visitation. We agree. The nature of any order must be determined by its legal effect, not its label. Based on the…