Jaime G. v. H.L.

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.



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.

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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

5

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-

6

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.”

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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.

9

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.”

10

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

11

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

12

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.”

13

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

14

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

15

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.

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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:

17

“(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.

18

“(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.

19

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

20

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.)

21

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

22

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

23

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

24

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.”

25

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.”

26

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

27

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

28

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.

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.