BayLegal Weighs in on Critical Protections for Children

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BayLegal Weighs in on Critical Protections for Children

On July 23, 2024,Bay Area Legal Aid  filed an amicus brief in C.C. v. D.V., a case before the California Court of Appeal involving a domestic violence restraining order and child custody. In the case, domestic violence survivor, C.C., who endured serious domestic violence at the hands of her partner, D.V., and was unrepresented in the trial court proceedings, sought a restraining order against D.V. and sought sole custody of the parties’ children. D.V., who was represented by an attorney, agreed to a 1-year restraining order protecting C.C. The restraining order prohibits D.V. from contacting C.C., harassing, threatening, or physically harming C.C., and from coming within a specified distance of C.C.  The trial court issued custody orders granting joint custody to the parties following the issuance of the 1-year restraining order. C.C. challenges the court’s custody order and BayLegal filed a brief in support of her position.

The important issue on appeal is whether critical protections in the Family Code designed to protect children from domestic violence apply to a stipulated domestic violence restraining order. Family Code section 3044 establishes a rebuttable presumption against awarding joint custody to the abusive parent. This means that the abuser must make certain, specific showings in order for the court to grant them custody. BayLegal’s brief explains why the court must imply a finding of domestic violence any time it grants a domestic violence restraining order and that this implicit finding in turn requires application of section 3044’s important protections.

Specifically, BayLegal’s brief explains that the Legislature’s clear intent in passing section 3044 was to protect children from exposure to domestic violence. It found the widespread negative impacts of exposure to domestic violence on children of all ages–including disproportionate occurrence of PTSD symptoms, drug and alcohol abuse, and suicide attempts–to be well-documented and catastrophic, and the related social and economic costs to be “enormous.” In order to protect children from such exposure, the Legislature passed section 3044, with the clear intent to ensure that custody is never awarded to an abusive parent unless that parent demonstrates, as we state in our brief, that they “recognize the harm caused by their behavior and take affirmative steps to demonstrate they are a safe parent.” 

BayLegal’s brief also explains that the court must find an act of abuse has occurred in order to issue a restraining order. The Domestic Violence Prevent Act allows a court to issue a restraining order only upon “an act or acts of abuse,” and only if the parties are current or former partners, have children together, have a parent-child relationship, or are close family relatives. BayLegal explains that section 3044 was enacted in clear recognition that a restraining order constitutes a finding of abuse, and thus triggers the 3044 presumption. To presume otherwise would, in the language of BayLegal’s brief, “lead down a nonsensical path, wasting judicial resources and forcing parties to litigate the very thing they sought to resolve by stipulation.”

BayLegal urges the appellate court to decide the case in Appellant’s favor, and for the benefit of survivors throughout California.

Read the full brief here (PDF)