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Name: In re C.M.
Case #: B291817
Court: CA Court of Appeal
District 2 DCA
Division: 5
Opinion Date: 07/31/2019

Family Code section 3044, and its rebuttable presumption against custody awards to perpetrators of domestic violence, does not apply to dependency proceedings. The Department filed a petition to make the minor, C.M., and his half sibling, N.M., dependents of the court following a series of domestic violence incidents between mother and N.M.’s father. C.M.’s father sought custody of C.M. C.M. was placed in his father’s home. At the disposition hearing, the Department recommended terminating jurisdiction and giving sole physical custody to father, with monitored visits for mother, and joint legal custody. Father objected to joint legal custody, arguing that Family Code section 3044 states that joint legal custody is presumptively not in the minor’s best interest when there has been a history of domestic violence. Father requested sole legal custody, and minor’s counsel joined in father’s request, noting the parents’ inability to make decisions together. The court maintained the joint legal custody order. On appeal, father contended that the juvenile court erred when it ordered mother and father to share joint legal custody despite the presumption against joint custody set forth in Family Code section 3044. The appellate court rejected the argument. The Family Code presumption is inapplicable to dependency proceedings. Dependency proceedings are governed by the Welfare and Institutions Code, and guided by the totality of the circumstances in issuing orders that are in the child’s best interest. Father also argued that even without the presumption, the joint legal custody order was an abuse of discretion. The court rejected that argument as well. There was sufficient evidence in the record to support the court’s determination that on balance, it was in C.M.’s best interest for his mother to have joint legal custody. She was his primary caretaker from birth until the age of five, and they shared a close bond.