California Court Reverses Custody Order for Section 3044 Error

California Court Reverses Custody Order for Section 3044 Error

A California appeals court reversed a San Diego custody order and published the ruling on September 8, 2026, holding that a family court could not skip the Family Code section 3044 domestic violence presumption just because another judge had found it rebutted in a different case.

Information last verified on September 9, 2026.

Jurisdiction scope: This decision binds California trial courts and applies only to California child custody proceedings governed by the California Family Code. It construes California Family Code section 3044, which has no counterpart in other states. Other states have their own domestic violence custody presumptions with different triggers, different rebuttal standards and different findings requirements, so nothing here transfers automatically across a state line.

What Happened

The appeal arose from a custody dispute that began in 2016. According to the opinion, Jessica L. (Mother) and Sammer Z. (Father) married in March 2015, separated in July 2016 when their only child was three months old, and agreed in a December 2017 divorce decree that Mother would have sole legal and primary physical custody, with Father having unsupervised visits three days a week (In re Marriage of Jessica and Sammer Z. (Aug. 18, 2026, D084336) at pp. 4-5).

Two separate domestic violence events drive the legal question. Father was arrested on May 5, 2018 for domestic violence against his second wife, and pled guilty in September 2018 to two counts of misdemeanor domestic violence in San Diego County Superior Court (id. at p. 5). Then in October 2023, Father's later partner, identified in the opinion as Raquel H., sought a domestic violence restraining order in a separate San Diego case. After a two-day evidentiary hearing in February 2024, that court found both parties had committed acts of abuse violating the Domestic Violence Prevention Act and issued mutual restraining orders for a one-year period (id. at pp. 7-8).

The pivotal event came on April 9, 2024. In that separate case, the court found "in an abundance of caution" that Father and Raquel H. had each rebutted the section 3044 presumption as to their own daughter, based on a written stipulation the court signed and entered as an order the same day, and dismissed the mutual restraining orders with prejudice "without making any of the findings required under section 3044, subdivision (f)" (id. at p. 8).

Back in the custody case, after a three-day bench trial in November 2024, the family court issued a 43-page statement of decision and a December 23, 2024 findings and order after hearing. It awarded the parties joint legal custody with Father holding final decision-making authority over conjoint therapy, gave Father primary physical custody, ordered Mother's visitation supervised, and sanctioned Mother $74,824.80 under section 271, subdivision (a) (id. at p. 14).

The family court did not apply the section 3044 presumption. It concluded it was bound by the other court's finding that Father had overcome it. The Court of Appeal quoted the trial judge directly:

"I don't . . . have the ability to rationalize or figure out what [the court in case No. 2943N] may have been thinking . . . . But most importantly, I can't ignore that another judge made a finding that [Father] overcame the presumption."

In re Marriage of Jessica and Sammer Z., No. D084336, at p. 21 (quoting the trial court).

The family court did treat the abuse as a best-interest factor under section 3011, subdivision (a)(2)(A)(iii). It called Father's conduct toward Raquel H. "concerning," noted the conduct occurred after he had already completed a 52-week domestic violence rehabilitation program in 2019, voiced "concerns" that the child "could be subjected to domestic violence" if Father had custody, and ordered Father into individualized anger management and domestic violence treatment (id. at p. 15). What it did not do was shift the burden of persuasion, which is what section 3044 exists to accomplish.

Justice Buchanan wrote the opinion, with Presiding Justice McConnell and Justice Kelety concurring. The published caption records appeals from three orders of the San Diego County Superior Court, listing Margo Lewis Hoy, retired Temporary Judge, Euketa Oliver, Judge, and Terrie E. Roberts, Judge.

The panel resolved four contentions, listing them itself as disentitlement, forfeiture, prejudicial error and bias. It refused to apply the "extreme measure" of appellate disentitlement despite Father's argument that Mother had defied court orders, reasoning in part that "[t]he purpose of the section 3044 presumption is to protect the health, safety, and welfare of the child" (id. at pp. 19-20, quoting S.Y. v. Superior Court (2018) 29 Cal.App.5th 324, 346). It held Mother had not forfeited the issue, because she raised section 3044 in her trial brief and in opposing a motion in limine and the court simply disagreed with her (id. at pp. 20-23). It held that the failure to apply the presumption, which rested on an issue-preclusion theory the panel rejected, was prejudicial error. And it found no judicial bias, declining to order reassignment under Code of Civil Procedure section 170.1, subdivision (c) (id. at pp. 35-37).

On issue preclusion, the reasoning is narrow and practical. Because the two cases "involved different children, different relationships, and different factual allegations," Father could not establish the identical issue element (id. at p. 27). Whether the presumption is rebutted turns on the best interest of the particular child, which the panel noted may vary with the child's age, relationship with the perpetrator and exposure to domestic violence. The panel added that it was questionable whether the rebuttal issue was ever actually litigated, since it rested on a stipulation, and that Mother was neither a party to nor in privity with a party in the earlier case (id. at pp. 27-29).

The disposition is precise. Mother's appeal from April 8 and May 7, 2024 orders was dismissed as moot. The July 17, 2024 sanctions order was affirmed. The December 23 order was "reversed as to custody and visitation (but not sanctions)," with directions to conduct limited proceedings applying section 3044, make the required statutory findings if the court finds the presumption rebutted, and enter a new custody order (id. at p. 38). The trial court may consider the evidence already presented and has discretion over the scope of any additional evidence. The panel also directed the trial court to consider appointing counsel for the minor under Family Code section 3150 et seq. and rules 5.240, 5.241 and 5.242 of the California Rules of Court, and ordered the parties to bear their own costs on appeal.

What the Law Actually Says

Family Code section 3044 sits in Division 8, Part 2, Chapter 2 of the Family Code, the chapter on matters to be considered in granting custody. The text now on the books was added by Stats. 2024, ch. 544, sec. 7 (SB 899), effective January 1, 2025 and operative January 1, 2026, and the language the Court of Appeal quoted appears in that current text. The version in force at the November 2024 trial was materially the same. SB 899 carries both versions side by side, and the only difference a reader needs is in the seventh rebuttal factor: the earlier text ended at a firearm or ammunition held "in violation of Section 6389," and the version operative January 1, 2026 adds Code of Civil Procedure section 527.9 and Penal Code section 18120. Subdivisions (a), (b)(1), (c), (d), (e), (f), (g) and (h) read word for word the same in both.

Subdivision (a) sets the trigger. Upon a finding that a party seeking custody "has perpetrated domestic violence within the previous five years" against the other party seeking custody, against the child or the child's siblings, or against a person described in section 3011, subdivision (a)(2)(A) with whom the party has a relationship, "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, pursuant to Sections 3011 and 3020." The same subdivision closes the door on any lesser showing: "This presumption may only be rebutted by a preponderance of the evidence."

Subdivision (c) defines the conduct. A person has "perpetrated domestic violence" when a court finds the person intentionally or recklessly caused or attempted to cause bodily injury, committed sexual assault, placed a person in reasonable apprehension of imminent serious bodily injury, or engaged in behavior "involving, but not limited to, threatening, striking, harassing, destroying personal property, or disturbing the peace of another," for which a court may issue an ex parte order under section 6320. That is the same conduct standard that supports a protective order, which is why the appellate court could repeat that a finding of domestic abuse sufficient to support a Domestic Violence Prevention Act restraining order "necessarily triggers the presumption in section 3044" (opinion at p. 25, quoting Christina L. v. Chauncey B. (2014) 229 Cal.App.4th 731, 736). If you are trying to understand how those protective orders are obtained and what findings support them, our explainer on how restraining orders work in California walks through the process.

Subdivision (d) explains what satisfies the finding requirement. Under (d)(1), a conviction within the previous five years, after a trial or a plea of guilty or no contest, of a qualifying domestic violence crime will do it. Under (d)(2), a finding under subdivision (a) by any court, "whether that court hears or has heard the child custody proceedings or not," based on conduct occurring within the previous five years, also satisfies it. That second clause matters here: it makes an out-of-case finding of abuse portable into a custody proceeding, and the appellate court confirmed the presumption applies even when the domestic violence finding came from a court other than the one hearing the custody matter (opinion at p. 25, citing Noble v. Superior Court (2021) 71 Cal.App.5th 567, 577).

The five-year clock is a real limit, and it cut in Father's favor on one point. The opinion explains in footnote 15 that the presumption did not attach to the 2018 conduct, because the September 2018 conviction fell "outside the five-year period of Minor's November 2024 custody trial" (id. at p. 32, fn. 15). That older conviction remained relevant to best interest under section 3011, but it no longer carried the burden-shifting weight of section 3044.

Rebuttal is a two-step exercise under subdivision (b). Step one, in (b)(1), requires the perpetrator to demonstrate that giving them sole or joint physical or legal custody is in the child's best interest under sections 3011 and 3020, and it carves out two arguments the perpetrator may not use: "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." Step two requires the court to find that the (b)(2) factors, "on balance, support the legislative findings in Section 3020." Those factors are successful completion of a batterer's treatment program meeting Penal Code section 1203.097, subdivision (c); successful completion of alcohol or drug abuse counseling if the court determines it appropriate; successful completion of a parenting class if the court determines it appropriate; probation or parole status and whether its terms were followed; whether the perpetrator is restrained by a protective or restraining order and has complied with it; whether the perpetrator has committed further acts of domestic violence; and whether the court has determined under section 6322.5 that the restrained person possesses or controls a firearm or ammunition in violation of section 6389, Code of Civil Procedure section 527.9, or Penal Code section 18120.

Subdivision (f) is the findings requirement that decided this appeal. Paragraph (1) states the Legislature's intent that the subdivision "be interpreted consistently with the decision in Jaime G. v. H.L. (2018) 25 Cal.App.5th 794, which requires that the court, in determining that the presumption in subdivision (a) has been overcome, make specific findings on each of the factors in subdivision (b)." Paragraph (2) requires that if the court determines the presumption has been overcome, "the court shall state its reasons in writing or on the record as to why paragraph (1) of subdivision (b) is satisfied and why the factors in paragraph (2) of subdivision (b), on balance, support the legislative findings in Section 3020."

Two more subdivisions carry procedural force. Subdivision (g) requires a court, in any evidentiary hearing or trial where custody orders are sought and domestic violence has been alleged, to determine whether section 3044 applies before issuing a custody order, unless it continues the matter and issues a compliant temporary order. Subdivision (h) requires the court to inform the parties that the section exists and give them a copy before custody mediation. Subdivision (e) bars a court from basing a domestic violence finding solely on a custody evaluator's conclusions or a Family Court Services recommendation. Readers looking for the wider framework this presumption plugs into can start with our guide to how California courts decide legal and physical custody.

Analysis: Why This Matters

The following is analysis from the Recording Law Editorial Team.

The striking feature of this opinion is that the family court did not ignore domestic violence. It found the abuse "concerning," weighed it under section 3011, worried aloud that the child "could be subjected to domestic violence" in Father's home, and ordered Father into treatment (opinion at p. 15). On a purely substantive reading, domestic violence was in the mix. The Court of Appeal still reversed, and the reasons it gave show why the presumption is not interchangeable with a best-interest factor.

The first reason is burden allocation. The panel repeated that the effect of the section 3044 presumption "is to shift the burden of persuasion on the best interest question to the parent who committed domestic violence" (id. at p. 30). Weighing abuse as one factor among many leaves the burden where it was. Applying the presumption moves it. That is a different decision procedure, not a different emphasis.

The second reason is the carve-out in subdivision (b)(1), and this is the part practitioners should read twice. The family court leaned heavily on the move-away factors from In re Marriage of LaMusga (2004) 32 Cal.4th 1072 and on section 3040, subdivision (a)(1), finding Father was "the parent who is more likely to support and encourage the child's relationship with the mother" (id. at pp. 33-34). Section 3044, subdivision (b)(1) puts precisely that consideration off limits in the rebuttal analysis. The panel noted the trial court concluded that any other order "would result in this father's relationship with this child being completely nonexistent" (id. at p. 34), which is the friendly-parent rationale in its purest form. When the factor doing most of the work is one subdivision (b)(1) puts off limits in a rebuttal analysis, the panel found a reasonable probability the outcome would have differed under the correct framework, citing Ellis v. Lyons (2016) 2 Cal.App.5th 404, 415-418 (id. at p. 34).

The third reason is the record itself. Section 3044, subdivision (f)(1) demands specific findings on each subdivision (b) factor. There were none, and the panel refused to imply them. As the opinion puts it:

"Without those required findings, we are left to guess whether the court would have made the same custody determination in this case."

In re Marriage of Jessica and Sammer Z., No. D084336, at p. 32.

The panel also pointed out that the trial court had made two findings favoring Mother, on the child's stability and continuity of custodial arrangement and on the risk created by Father's domestic violence, which supported the conclusion that the outcome might have differed under the correct framework (id. at p. 35). The standard of prejudice it applied is forgiving to an appellant: a reasonable probability "does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility" (id. at p. 30, quoting Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800).

There is also a quiet doctrinal development worth flagging. In footnote 13 the panel observed that Division One had previously disagreed with Jaime G. in S.Y. v. Superior Court (2018) 29 Cal.App.5th 324, holding that a trial court "need only provide sufficient reasons to permit meaningful appellate review," and then wrote that given subdivision (f)(1)'s mandate, "we doubt the continued validity of S.Y. on this issue" (id. at p. 31, fn. 13). That is a court signaling retreat from its own prior standard because the Legislature legislated past it through Assembly Bill 2044, which added subdivision (f)(1) effective January 1, 2019 (Stats. 2018, ch. 941, sec. 3; opinion at p. 31).

The publication timing deserves its own note. The opinion was filed on August 18, 2026 without certification for publication, meaning it resolved the parties' dispute but generally could not be cited as precedent under the California Rules of Court. On September 8, 2026, granting a request under rule 8.1120(a), the court ordered the words "Not to Be Published in the Official Reports" deleted and certified the opinion for publication under rule 8.1105(c). That certification order is appended to the opinion PDF and signed by Presiding Justice McConnell. Nothing in the analysis changed. What changed is that the reasoning became citable authority in California, which is why an opinion filed three weeks earlier is news now. Anyone citing it should treat September 8, 2026 as the operative date and should confirm the opinion has not since been modified or accepted for further review.

For readers comparing how appellate courts police custody procedure across states, we covered a Maine decision on religious decision-making in custody that turned on a similar theme: the standard the trial court used, not the outcome it reached.

How This Affects You

This decision changes the procedure a California family court must follow. It does not determine the result in any particular family's case. A few general implications follow from the text.

A domestic violence finding made in one case can travel into a separate custody case. Section 3044, subdivision (d)(2) says a qualifying finding by any court, whether or not it hears the custody proceedings, satisfies the finding requirement, and the Court of Appeal confirmed the presumption applies even when the finding came from another court (opinion at p. 25).

A finding that the presumption was rebutted does not travel the same way. Under this opinion, a rebuttal finding as to one child, in a case with a different other parent and different facts, is not preclusive in a later custody case involving a different child. The rebuttal question is child-specific by statutory design, because subdivision (b)(1) ties it to the best interest of that child.

A stipulation is a weak foundation for a rebuttal finding. The earlier court accepted the parties' written stipulation and made no subdivision (f) findings. The panel noted that an issue is not actually litigated if it is the subject of a stipulation between the parties (id. at p. 28). Anyone relying on a stipulated rebuttal finding in a later proceeding should expect it to be contested.

The five-year lookback is measured against the custody proceeding. A conviction or finding that has aged out no longer triggers the presumption, though it can still be weighed as part of a history of abuse under section 3011, subdivision (a)(2)(A). Because the trigger date moves with the calendar, the same conviction can support the presumption at one hearing and not at a later one.

Missing findings are appealable error, not harmless housekeeping. The panel collected a line of California decisions reversing for failure to apply the presumption or to make the required statutory findings (id. at p. 35), and it rejected the argument that the doctrine of implied findings could fill the gap.

Finally, the appeal survived arguments that had nothing to do with the merits. The court declined to dismiss on disentitlement grounds even though sanctions and contempt findings were outstanding, reasoning in part that the section 3044 presumption exists to protect the child's health, safety and welfare rather than the litigant's interests (id. at pp. 19-20). Because custody rules vary from state to state, none of this describes what a court outside California would do.

This article is general legal information about California law, not legal advice, and reading it does not create an attorney-client relationship. Details were verified on September 9, 2026 against the published opinion and the official text of California Family Code section 3044, and both a court decision and a statute can change after that date. For advice about a specific custody or domestic violence matter, consult a lawyer licensed in your jurisdiction.

Related articles

• California Child Custody Laws: Types, Best Interests
• Compare custody standards across all 50 states
• How to obtain and enforce a protective order in California
• Maine court rejects strict scrutiny in a religious custody dispute

Last updated: 2026-09-09. Details verified as of 2026-09-09.

Frequently Asked Questions

What did the California Court of Appeal decide in In re Marriage of Jessica and Sammer Z.?

It held the San Diego family court committed prejudicial error by declining to apply the Family Code section 3044 presumption on the theory that it was bound by another judge's finding, in a separate case involving a different child, that the father had overcome the presumption. The court reversed the December 23, 2024 order as to custody and visitation and remanded for limited proceedings to apply section 3044. The opinion, No. D084336, was filed August 18, 2026 and certified for publication September 8, 2026.

Did the court decide who should have custody of the child?

No. The panel wrote that it offered no opinion on whether the father can rebut the section 3044 presumption, leaving that issue to be decided by the trial court in the first instance. The reversal was for a failure to follow the statutory procedure, and the custody question returns to the family court.

What triggers the section 3044 presumption in California?

Under subdivision (a), a court finding that a party seeking custody perpetrated domestic violence within the previous five years against the other party seeking custody, against the child or the child's siblings, or against a person described in section 3011, subdivision (a)(2)(A) with whom the party has a relationship. Subdivision (d) adds that a qualifying conviction within five years, or a subdivision (a) finding by any court whether or not it heard the custody case, satisfies the finding requirement.

What does perpetrated domestic violence mean for purposes of section 3044?

Subdivision (c) defines it as intentionally or recklessly causing or attempting to cause bodily injury, sexual assault, placing a person in reasonable apprehension of imminent serious bodily injury, or engaging in behavior involving threatening, striking, harassing, destroying personal property, or disturbing the peace of another, for which a court may issue an ex parte order under section 6320. That is the same conduct standard that supports a Domestic Violence Prevention Act restraining order.

How does a parent rebut the section 3044 presumption?

By a preponderance of the evidence, in two steps under subdivision (b). First, the parent must show that giving them sole or joint custody is in the child's best interest under sections 3011 and 3020, without relying on the preference for frequent and continuing contact with both parents in section 3020, subdivision (b) or with the noncustodial parent in section 3040, subdivision (a)(1). Second, the court must find that the seven factors listed in subdivision (b)(2), covering batterer's treatment, substance abuse counseling, parenting classes, probation or parole compliance, restraining order compliance, further acts of domestic violence, and firearm findings under section 6322.5, on balance support the legislative findings in section 3020.

What findings does section 3044, subdivision (f) require?

Paragraph (1) states legislative intent that the subdivision be read consistently with Jaime G. v. H.L. (2018) 25 Cal.App.5th 794, which requires specific findings on each of the subdivision (b) factors when a court determines the presumption has been overcome. Paragraph (2) requires the court to state its reasons in writing or on the record as to why subdivision (b)(1) is satisfied and why the subdivision (b)(2) factors, on balance, support the legislative findings in section 3020.

Why did the father's 2018 domestic violence conviction not trigger the presumption?

The opinion explains in footnote 15 that the September 2018 conviction fell outside section 3044's five-year lookback measured from the November 2024 custody trial. It remained relevant to the best interest analysis under section 3011, subdivision (a)(2)(A)(iii), but it no longer shifted the burden of persuasion. A February 2024 finding of abuse involving a later partner is what triggered the presumption, and the parties did not dispute that point.

Does a finding in one case that a parent overcame the presumption bind a later custody case?

Not on these facts. The panel held issue preclusion did not apply because the two cases involved different children, different relationships and different factual allegations, so the identical issue element failed. It also noted the earlier finding rested on a stipulation rather than actual litigation, and that the mother was neither a party to nor in privity with a party in that case.

Why does it matter that the opinion was certified for publication on September 8, 2026?

A California Court of Appeal opinion that is not certified for publication resolves the parties' dispute but generally cannot be cited as precedent. The September 8, 2026 order granted a request under California Rules of Court, rule 8.1120(a) and certified the opinion for publication under rule 8.1105(c), which is what makes the reasoning citable authority in California family courts.

Did the appeals court send the case to a different judge?

No. The mother asked for reassignment under Code of Civil Procedure section 170.1, subdivision (c), arguing bias. The panel found no support in the record, noted that legal error normally is not a ground for disqualification, and observed that the trial court had found some factors favored the mother. The panel also directed the trial court to consider appointing counsel for the minor under Family Code section 3150 et seq.