Opinion
We issue a peremptory writ because the family court erroneously has applied the “changed circumstances” standard rather than the “best interest” rule to a move-away order in a child custody case when there
*1051
has been no final judicial custody determination within the meaning of
Montenegro v. Diaz
(2001)
In making this initial custody determination, the family court should give the parties an opportunity to be meaningfully heard, and should not arbitrarily deprive either parent from offering pertinent evidence bearing on the child’s best interest, including evidence regarding the harm that may result from disruption of established patterns of care and emotional bonds.
I
Petitioner Keith R. (Father) and real party in interest H.R. (Mother) were married in mid-2004. B.R. (Daughter) was bom in the fall of 2005. 2
After Father filed for divorce in September 2006, Mother asserted domestic violence allegations against Father, and requested sole custody of Daughter. Following an investigation and a hearing, the court (Judge Claudia Silbar) denied Mother’s requests. In February 2007, the court (Judge Pollard) entered an order granting both parents joint legal and physical custody, and appointed a child custody evaluator, who recommended maintaining the current custody arrangements based on Daughter’s parental attachments.
In early 2008, Mother sought a temporary restraining order against Father, citing new allegations that he had stalked and was spying on her, and was seen by a police officer parked outside Mother’s apartment complex late at night. 3
*1052 On May 21, 2008, following several hearings on the domestic violence allegations, the court issued a domestic violence order against Father for “harassment and stalking.” The court ordered Father to have no contact with Mother directly or indirectly, other than through counsel, and directed that Mother have sole legal and physical custody of Daughter. Father was required to participate in a 52-week batterer’s intervention program, and was restricted to four hours monitored visitation per month, pending further court order.
The court thereupon proceeded to the custody phase, conducting hearings episodically for seven days in June and October of 2008 and January 2009. The court recognized the father-daughter attachment, stating “I don’t have a closed mind about this. I think that this father is a very loving and caring father to this little girl. And I think this little girl is very attached to her father. And I want to make sure that that relationship is a healthy one.” Despite this evidence regarding Father’s strong relationship with Daughter, the court expressed the view that “[t]here is no change in custody until all 52 weeks of the batterer’s intervention program are completed.”
On January 27, 2009, the court issued a move-away order permitting Mother to move away with Daughter to Arizona, where the maternal grandmother lived. Father was given unmonitored visitation on alternate weekends. The court, citing
In re Marriage of Burgess
(1996)
The January 27 order effectively concluded the custody trial. The court found that Mother “has sole legal and sole physical custiody . . . .” Mother’s counsel stated “he will be submitting a judgment on Wednesday.” The court set the next hearing for mid-June in connection with Father’s request for extended visitation.
Father’s writ petition asks us to direct the family court to vacate the move-away order, and to conduct a “proper” custody trial before a different judicial officer.
We issued a temporary stay, and directed the parties to submit additional briefing.
*1053 II
When there are competing parental claims to custody, the family court must conduct an adversarial proceeding and ultimately make an award that is in “the best interest of the child.” (§ 3040, subd. (b).) The purpose is to maximize the child’s opportunity to develop into a stable, well-adjusted adult. The child’s welfare is paramount and the “overarching concern.”
(Montenegro, supra,
Once there has been a final judicial determination regarding the best interest of a child, the dual goals of judicial economy and protecting stable custody arrangement preclude a de novo examination.
(Burchard v. Garay
(1986)
These principles do not apply to interim custody orders, which are not intended to be final judgments as to custody. “The best interest analysis is used when making a permanent custody determination initially.”
(Ragghanti
v.
Reyes
(2004)
A
The family court based its move-away order upon the fact that Mother had “sole legal and sole physical custody” of Daughter because of a presumption arising from the domestic violence order. As a result, the court, applying the *1054 changed circumstances standard, held that Father had failed to prove that a move away would pose a significant detriment to Daughter. The court made no determinations regarding Daughter’s best interest.
The court used the wrong legal standard to resolve Mother’s relocation request. The changed circumstances rule articulated in
Burchard.
and
Burgess
does not apply because there has not yet been a final judicial custody determination. Neither the May 21, 2008 nor January 27, 2009 orders constitute such a final order. “Child custody proceedings usually involve fluid factual circumstances, which often result in disputes that must be resolved before any final resolution can be reached.” (Montenegro, supra,
B
Mother argues that the existing domestic violence order entitles her to relocate out of state unless Father shows that the move would be detrimental to Daughter. According to Mother, “a Restraining Order After Hearing which is due to expire in five years was issued giving [Mother] sole legal and sole physical custody of the minor child. ... In particular, if a parent has been awarded sole legal and physical custody of a child, a trial court may deny the noncustodial parent’s request to modify custody without holding a hearing . . . .”
We disagree. A domestic violence order is not the same as a final judicial custody determination. To the contrary, a domestic violence finding in a family law case changes the burden of persuasion as to the best interest test, but it does not limit the evidence cognizable by the court, and it does not eliminate the best interest requirement. (§§ 3020, subd. (a), 3044, subd. (b)(1).) 4
*1055 Domestic violence orders are designed to prevent the recurrence of broadly defined acts of “abuse,” against victims, including former or separated spouses or cohabitants, and to resolve their underlying causes. (§§ 6211, subds. (a), (b), 6220.) They are broader than civil harassment orders, and do not require as high a burden of proof. They may issue with or without notice. (§ 6300.) The focus understandably is upon the victim.
The section 3044 presumption, however, does not change the best interest test, nor supplant other Family Code provisions governing custody proceedings. This presumption may be overcome by a preponderance of the evidence showing that it is in the child’s best interest to grant joint or sole custody to the offending parent. (§ 3044, subd. (b)(1).) Nor does the statute establish a presumption for or against joint custody; again, the paramount factor is the child’s health, safety and welfare. (§§ 3020, subd. (a), 3040, subd. (b).) And where the section 3044 presumption has been rebutted, there is no statutory bar against an award of joint or sole custody to a parent who was the subject of the order. 5
This is particularly important in move-away cases, which are among the most serious decisions a family court is called upon to make. Because an out-of-state relocation will deprive one parent of the ability to have frequent and continuing contact with the children, the competing claims must be considered calmly and dispassionately, and only after the parties have been afforded the opportunity to be “meaningfully heard.”
(In re Marriage of Seagondollar
(2006)
*1056 The January 27 move-away order terminated the custody trial without affording Father an opportunity to meaningfully rebut the section 3044 presumption. The court focused upon one of the listed statutory factors in rebutting the presumption: whether he had completed the 52-week batterer’s program. This was a physical impossibility because only 32 weeks had elapsed since the court directed him to attend. Nonetheless, in concluding the custody proceedings on January 27, the court found “that Father has not met his burden as to [section] 3044.” 6
There are important policy reasons why domestic violence orders should not be treated as the functional equivalent of final judicial custody determinations. Domestic violence orders often must issue quickly and in highly charged situations. The focus understandably is on protection and prevention, particularly where the evidence concerning prior domestic abuse centers on the relationship between current or former spouses. Treating domestic violence orders as de facto final custody determinations would unnecessarily escalate the issues at stake, ignore essential factors (such as the children’s best interest) and impose added costs and delays. It also may heighten the temptation to misuse domestic violence orders for tactical reasons.
It is true that Father, given the findings accompanying the domestic violence order, cannot rely on the statutory preference for “frequent and continuing contact” with both parents. (§§ 3020, subd. (b), 3044, subd. (b)(1).) 7 But while Father may have lost his ability to cite this statute, Daughter certainly did not lose her right to have a meaningful relationship with both parents. The minor child’s best interests must remain at the forefront of the family court’s considerations on custody in determining whether the section 3044 presumption has been rebutted.
*1057 III
A peremptory writ is proper to resolve this purely legal dispute in an area where the issues of law are well settled. Father prayed for a peremptory writ, and Mother asserted no objection in her 42-page response. (Code Civ. Proc., § 1008;
Lewis
v.
Superior Court
(1999)
A final word about the proceedings on remand, which require a new trial on permanent custody and move-away. It is particularly critical that Father, as the party bearing the burden of persuasion under the section 3044 presumption, have the opportunity to introduce evidence pertinent to the best interests of the child. This includes evidence about the nature of Father’s relationship with Daughter, his ability and willingness to care for her, the extent, if any, to which he poses a risk of physical and emotional abuse, his receptivity to being a “friendly parent,” and Daughter’s needs for more than marginalized parental relationships. Before reaching any final custody decision, the court should conduct a detailed review of the evidence presented at trial and carefully weigh all of the relevant factors required by section 3044.
This custody proceeding involves disputed facts, and we do not intend, by our recitation of the procedural history or legal discussion, to dictate any particular outcome. That is a matter in which the family court is invested with wide discretion to choose a parenting plan that is in the best interests of the child, after looking to all the circumstances.
(Montenegro, supra,
IV
We decline Father’s request to exercise our discretion to order that a different bench officer conduct the proceedings. (See
Hernandez v. Superior
*1058
Court
(2003)
On remand, however, Father, may file a new peremptory challenge to the family law judge under Code of Civil Procedure section 170.6, subdivision (a)(2). “A [litigant] is entitled to timely demand a new judge if a new trial is granted as part of writ relief.”
(Overton v. Superior Court
(1994)
We find nothing in the January 27 order to show the court’s intent to hear further evidence on custody. To the contrary, the court determined that Father failed to rebut the section 3044 presumption and awarded sole legal and physical custody to Mother.
Mother contends that we should avoid a new trial because “an inordinate amount of time (not including the several hearings on domestic violence)” already has been devoted to custody. She suggests that we instead direct the same family law judge “to pick up where it left off ... as opposed to starting a new trial on the same issue.”
Father does not lose his right to a peremptory challenge simply because it may be more efficient to keep the same judicial decision maker. The family court having erred in the “crucial decision of law” requiring a reexamination on remand, Father is entitled to assert a peremptory challenge at a new trial without having to show actual prejudice.
(Stubblefield, supra,
*1059 Disposition
Let a peremptory writ of mandate issue directing respondent court to vacate its order of January 27, 2009, including supporting factual findings, insofar as it grants sole custody to Mother and permits her to move away to the State of Arizona with the minor child. Respondent court shall conduct a new trial on custody in accordance with this opinion before issuing a final or permanent judicial custody determination. The temporary stay shall be lifted upon the finality of this opinion.
The parties shall bear their own costs in conjunction with this writ proceeding.
On June 5, 2009, the opinion was modified to read as printed above.
Notes
Rylaarsdam, Acting P. J., Fybel, J., and Ikola, J.
All statutory references are to the Family Code unless otherwise indicated.
To preserve the minor child’s privacy while allowing researchers and others to track and differentiate appellate opinions, we identify petitioner by his first name and last initial, and the other parties by their first and last initials. In so doing, we follow the approach suggested by the court in
In re Edward S.
(2009)
While the officer testified that his encounter was several months before the domestic violence hearing, Father offered documentary evidence that it actually happened one year earlier. He further challenged the accuracy and completeness of other evidentiary findings in the domestic violence order, but that matter is not before us. Both parties agree, as Father characterizes it, that “the judge’s domestic findings were the engine that drove the trial court to its conclusions on both custody and move away . . . .”
Section 3044, subdivision (a) establishes a rebuttable presumption against custody to a domestic violence perpetrator. It provides, in pertinent part: “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 . . . within the previous five years, there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who *1055 has perpetrated domestic violence is detrimental to the best interest of the child, pursuant to Section 3011. This presumption may only be rebutted by a preponderance of the evidence.”
Section 3044, subdivision (b) lists seven factors for rebuttal. It provides: “In determining whether the presumption set forth in subdivision (a) has been overcome, the court shall consider all of the following factors: [ID (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 . . . . [H] (3) Whether the perpetrator has successfully completed a program of alcohol or drug abuse counseling if the court determines that counseling is appropriate. [jQ (4) Whether the perpetrator has successfully completed a parenting class if the court determines the class to be appropriate, [fj (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, [f] (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. [10 (7) Whether the perpetrator of domestic violence has committed any further acts of domestic violence.”
Nonetheless, the court’s January 12 minute order states that Father had successfully completed more than 30 of the 52 weeks of the batterer’s treatment program, and the court “finds the petitioner is in compliance . . . .”
Section 3020 states, in pertinent part, that “[t]he Legislature finds and declares that it is the public policy of this state to assure that children have frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, or ended their relationship . . . .” (§ 3020, subd. (b).)
Section 3044, subdivision (b)(1) provides, in pertinent part: “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.”
Nothing in this opinion, including the disposition, is intended to restrict that portion of the January 27 move-away order, and any subsequent orders, insofar as they may have relaxed or revised Father’s visitation rights, and removed the monitor. The issue of visitation is outside the purview of this writ.