Domestic Violence Restraining Orders
In December 2005, wife sought a domestic violence temporary restraining order (DVRO) against husband seeking custody of their children and noticed a motion on her request for a three year restraining order. She alleged that husband had grabbed her by her throat and threatened her with a potato peeler and subsequently locked her out of the apartment for several days.
In answering the the temporary order request, husband agreed to wife's custody request but denied physically attacking her. He further asked the court to enforce the previous settlement agreement as to child and spousal support (alimony) that had been signed by the parties the year before. The agreement gave full and legal custody of the five children to the wife.
At the January 2006 hearing, both parties appeared pro per (wife is a licensed California lawyer). The court found husband guilty of domestic violence, granted the restraining order and awarded wife sole custody with monitored visitation to husband.
Husband then retained counsel who filed a motion for new trial and to set aside the restraining order pursuant to Code of Civil Procedure, section 473. Husband claimed that he did not understand the importance of the domestic violence action on child custody and related issues but that wife knew exactly what she was doing as she was a family law attorney.
Wife alleged that husband was erroneously relying on Family Code, section 3044 to support his motion (though not specifically cited) because it creates a rebuttable presumption that an award of custody to a domestic violence perpetrator is not in the child's best interest and requires a court to inform parties about the statute in certain circumstances. Wife argued that section 3044 applies only when the perpetrator is the one seeking custody and that it only requires notice prior to a custody mediation. Neither applied to the present case.
Husband further alleged that wife failed to prove by a preponderance of the evidence that he committed domestic violence. The appellate court found that there was substantial evidence to support the ruling.
Husband had argued that had he been notified pursuant to section 3044, he would have more vigorously contested the abuse allegations if he had known it would have triggered the presumption against custody. The Court of Appeal held that notice is only required to be given prior to a custody mediation.
Case: Sabbah v. Sabbah
Court: Superior Court of Orange County
Judge: Josephine Staton Tucker
In answering the the temporary order request, husband agreed to wife's custody request but denied physically attacking her. He further asked the court to enforce the previous settlement agreement as to child and spousal support (alimony) that had been signed by the parties the year before. The agreement gave full and legal custody of the five children to the wife.
At the January 2006 hearing, both parties appeared pro per (wife is a licensed California lawyer). The court found husband guilty of domestic violence, granted the restraining order and awarded wife sole custody with monitored visitation to husband.
Husband then retained counsel who filed a motion for new trial and to set aside the restraining order pursuant to Code of Civil Procedure, section 473. Husband claimed that he did not understand the importance of the domestic violence action on child custody and related issues but that wife knew exactly what she was doing as she was a family law attorney.
Wife alleged that husband was erroneously relying on Family Code, section 3044 to support his motion (though not specifically cited) because it creates a rebuttable presumption that an award of custody to a domestic violence perpetrator is not in the child's best interest and requires a court to inform parties about the statute in certain circumstances. Wife argued that section 3044 applies only when the perpetrator is the one seeking custody and that it only requires notice prior to a custody mediation. Neither applied to the present case.
Husband further alleged that wife failed to prove by a preponderance of the evidence that he committed domestic violence. The appellate court found that there was substantial evidence to support the ruling.
Husband had argued that had he been notified pursuant to section 3044, he would have more vigorously contested the abuse allegations if he had known it would have triggered the presumption against custody. The Court of Appeal held that notice is only required to be given prior to a custody mediation.
Case: Sabbah v. Sabbah
Court: Superior Court of Orange County
Judge: Josephine Staton Tucker
Labels: child custody mediation, domestic violence restraining order, Famil Code section 3044
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