Filed 9/1/26 A.K. v. B.L. CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(El Dorado)
A.K., C104551
Plaintiff and Appellant,
(Super. Ct. Nos. 24FL0133,
v. 24FL0134)
B.L.,
Defendant and Respondent.
A.K. (mother) and B.L. (father) are the parents of a child (the minor) who was
born in 2021. Because father perpetrated domestic violence against mother, a rebuttable
presumption arose that awarding father any kind of custody of the minor was detrimental
to the minor’s best interest. (Fam. Code, § 3044, subd. (a).)1 But after hearing testimony
from multiple witnesses at an April 2025 contested hearing, the family court determined
that father rebutted this presumption and awarded him joint legal custody of the minor,
with mother retaining sole physical custody.
Representing herself on appeal, mother contends (1) there was insufficient
evidence for the family court’s determination that father rebutted the section 3044
presumption; (2) the family court violated evidentiary and due process principles by
1 Undesignated statutory references are to the Family Code.
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taking judicial notice of documents filed in a different court proceeding to establish
disputed facts in this proceeding; and (3) the family court abused its discretion by relying
on incompetent evidence in making its ruling. We affirm.
BACKGROUND
A parenting/anger management instructor (the instructor) testified that father
completed two different classes with him: a 52-week domestic violence/batterer
treatment course and a parenting course. Regarding the batterer treatment course, the
instructor testified he offered one regular class and one make-up class each week, and
father had attended roughly 80 classes.
Father testified that he took approximately 80 batterer treatment classes with the
instructor. The classes taught him about self-awareness and conflict resolution: conflicts
should always be resolved, not left unresolved; and people should take as much time as
they need to resolve conflicts. Father testified that he often applied the insights and
techniques that he learned in the course in his workplace.
On cross-examination, father agreed that he enrolled in a court-ordered 52-week
batterer treatment course in July 2023. Father indicated in an earlier proceeding that he
had completed the course as of May 2024 because he took “extra classes, 52 classes.” He
continued attending the course after his 52d class to bolster his chances of rebutting the
section 3044 presumption.
A child custody recommending counselor (custody counselor) testified that she
recommended father have joint legal custody of the minor in a report that she submitted
to the family court because she believed father “had done all the necessary steps … to
have that ability to make decisions shared with Mother for the purpose of mutual
discussion and agreement.”
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In closing argument, mother’s counsel argued that father lied when he indicated he
had completed the 52-week batterer course in less than 52 weeks. Counsel also argued
father’s testimony amounted to “generic answer[s]” about taking courses and did not
demonstrate why it was in the minor’s best interest for father to have joint legal custody.
The family court took a recess to review the testimony and evidence and then
ruled from the bench that father had rebutted the section 3044 presumption. It explained
that in reaching its decision, it considered the factors articulated in section 3044. Section
3044, subdivision (b) provides: “To overcome the presumption set forth in subdivision
(a)”—that an award of any kind of custody of a child to a person who has perpetrated
domestic violence is detrimental to the best interest of the child—“the court shall find
that paragraph (1) is satisfied and shall find that the factors in paragraph (2), on balance,
support” an award of custody.
Section 3044, subdivision (b)(1), provides in relevant part: “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 pursuant to Sections 3011 and
3020.” Subdivision (b)(2) of section 3044 contains seven factors the family court must
consider: “(A) The perpetrator has successfully completed a batterer’s treatment program
that meets the criteria outlined in subdivision (c) of Section 1203.097 of the Penal Code.
[¶] (B) The perpetrator has successfully completed a program of alcohol or drug abuse
counseling, if the court determines that counseling is appropriate. [¶] (C) The
perpetrator has successfully completed a parenting class, if the court determines the class
to be appropriate. [¶] (D) The perpetrator is on probation or parole, and has or has not
complied with the terms and conditions of probation or parole. [¶] (E) The perpetrator is
restrained by a protective order or restraining order, and has or has not complied with its
terms and conditions. [¶] (F) The perpetrator of domestic violence has committed
further acts of domestic violence. [¶] (G) The court has determined, pursuant to Section
6322.5, that the perpetrator is a restrained person in possession or control of a firearm or
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ammunition in violation of Section 6389, Section 527.9 of the Code of Civil Procedure,
or Section 18120 of the Penal Code.”
The family court determined five factors (A, C, D, E, and F) supported an award
of custody, and the other two factors were inapplicable. The inapplicable factors were
factor B (successful completion of alcohol or drug abuse counseling, if appropriate) and
factor G (possession of a firearm or ammunition in violation of certain laws). Regarding
factor A (successful completion of a qualifying batterer’s treatment), the family court
explained it was “troubled” by testimony reflecting a misconception “that an individual
could complete a 52-week program in less than 52 weeks.” Nevertheless, the family
court found father “completed the 52-week batterers treatment program” at the end of
July 2024. “The Court also [took] judicial notice of the completion letter that [was] a
part of the case file in” father’s related criminal case.
Regarding factor C (successful completion of a parenting class, if appropriate),
the family court found father successfully completed a parenting class. As for factor D
(being on probation or parole and compliance or noncompliant with those terms), the
family court found that father was in compliance with the terms of probation that were
ordered in connection with his criminal case. Regarding factor E (being restrained by a
protective order or restraining order and compliance or noncompliance with those
terms), the family court found (1) father was “restrained by both a criminal protective
order … issued in the criminal case which the Court takes judicial notice of … and a
domestic violence restraining order … issued in the companion case to” the instant
family law matter, and (2) father was “in compliance with” those orders, and (3)
therefore, the factor was met. As for factor F (commission of further acts of domestic
violence), the family court determined there were no further acts of domestic violence.
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Accordingly, the family court awarded joint legal custody to father and mother,
with mother retaining sole physical custody. The family court also modified and adopted
the custody counselor’s recommendations regarding a “step-up plan” that contemplated
60-day periods of longer and more frequent supervised visits between father and the
minor.
Mother appealed.
DISCUSSION
I
There Was Sufficient Evidence for the Family Court’s Ruling
Mother contends there was insufficient evidence for the family court’s
determination that father rebutted the section 3044 presumption. We disagree.
We review custody orders for an abuse of discretion and apply the substantial
evidence standard to the family court’s factual findings. A court abuses its discretion in
making a child custody order if it applies improper criteria or makes incorrect legal
assumptions. (In re Marriage of J.G. & K.G. (2025) 110 Cal.App.5th 1214, 1222.)
As a threshold matter, we disagree with mother’s contention that father’s
successful completion of a qualifying batterer’s treatment program was “the most central
… factor under … section 3044.” Nothing in the statute clearly indicates that any one
factor in subdivision (b)(2) is more important than the others. Rather, subdivision (b)
directs the family court to determine whether the factors in subdivision (b)(2), “on
balance, support” awarding custody to the domestic violence perpetrator. (§ 3044,
subd. (b), italics added.) That phrase suggests a careful weighing of all the factors
equally.
We also disagree with mother’s contention that the record “does not contain
competent evidence” that father completed the batterer treatment course. Both the
instructor and father were competent to testify that father completed the batterer
treatment course. (See Evid. Code, §§ 700-702 [competency of witnesses to testify].)
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Mother’s assertion that father’s testimony in this regard was “equivocal and inconsistent”
is unsupported by a citation to the reporter’s transcript and we therefore disregard it.
(Martinez v. Vaziri (2016) 246 Cal.App.4th 373, 382-383 [disregarding factual assertions
by a party that are not supported by citation to the record].) Moreover, the family court
was in the best position to evaluate credibility and here implicitly found father credible.
We defer to implicit credibility determinations by the trier of fact. (S.Y. v. S.B. (2011)
201 Cal.App.4th 1023, 1026, fn. 4.)
Mother invokes Jaime G. v. H.L. (2018) 25 Cal.App.5th 794 for the proposition
that a court’s “mandatory statutory finding” (here, that father completed the batterer
treatment course) cannot satisfy substantial evidence review if (1) the finding rests on
evidence that “the court itself identified as problematic” and (2) the “expected
documentation” supporting the finding (here, a certificate of completion) is absent from
the record. Jaime G. does not stand for that proposition. Rather, the case was about a
family court’s failure to state “in writing or on the record” the reasons for its
determination that the domestic violence perpetrator had rebutted the section 3044
presumption. (See § 3044, subd. (f)(2); Jaime G., at p. 805.) The family court stated its
reasons on the record here.
Mother contends the family court improperly took judicial notice of the truth of a
fact asserted in documents in father’s criminal case: that he completed the batterer
treatment course. Though mother did not raise this hearsay argument in the family court,
we will consider it now in the interests of justice because it is part of her challenge to an
issue that was litigated below: whether father rebutted the section 3044 presumption.
While the record indicates the family court did so err,2 mother has not carried her burden
2 Though “ ‘courts are free to take judicial notice of the existence of each document in a
court file, including the truth of results reached, they may not take judicial notice of the
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to show that any error in this regard was prejudicial. (Red Mountain, LLC v. Fallbrook
Public Utility Dist. (2006) 143 Cal.App.4th 333, 347-348 [“an appellant has the burden to
show not only that the trial court erred but also that the error was prejudicial”; error is
prejudicial “if it is reasonably probable that a result more favorable to the appellant
would have been reached absent the error”].) First, there is reason to believe that even in
the absence of a certificate of completion, the family court would have found that father
completed the batterer treatment course, because father testified that he completed the
course and the family court implicitly found him credible. Second, father’s completion
of the batterer treatment course was one of five factors that the family court determined
favored an award of joint legal custody to father. Even if the family court had
determined that father did not successfully complete the course, the resulting balance
would have been four factors in favor of awarding joint legal custody and one factor
against (with two inapplicable factors). Mother offers no argument regarding how a four-
to-one split might suggest a reasonable probability that the family court would have made
an award of sole legal custody to her.
Mother contends the family court improperly relied on “non-statutory
considerations” when ruling that father rebutted the section 3044 presumption. We are
not persuaded.
Mother argues the family court improperly relied on father’s testimony—that he
used the insights and techniques he learned in the batterer treatment course in his
workplace—in finding that father rebutted the section 3044 presumption. She contends
the family court thereby engaged in improper “generalized custody analysis.” Reviewing
the record in the light most favorable to the family court’s ruling (S.Y. v. Superior Court
truth of hearsay statements in … court files.’ ” (Kilroy v. State of California (2004) 119
Cal.App.4th 140, 145.) Here, the family court seems to have taken judicial notice of the
truth of a hearsay statement (father completed the batterer treatment course) that appeared
in a certificate of completion in father’s related criminal case file.
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(2018) 29 Cal.App.5th 324, 333), we view the family court’s discussion of father’s
“insight … in the work circumstance” as illuminating why the family court determined it
was in the minor’s best interest to award father joint legal custody. (See § 3044,
subd. (b)(1).)
II
Principles of Due Process and Evidence
Mother contends that independent of any section 3044 error, the family court
violated principles of due process and evidence by taking judicial notice of documents in
father’s criminal case to establish the truth of disputed facts. Because mother did not
raise this independent claim in the family court, we decline to consider it for the first time
on appeal. (Miller v. Pacific Gas & Electric Co. (2023) 97 Cal.App.5th 1161, 1170 [“It
is a fundamental principle that an appellate court will generally not consider an issue
presented for the first time on appeal that could have been but was not presented in the
trial court”].)
Further, mother has not carried her burden to show how any error in this regard
was prejudicial. (Red Mountain, LLC v. Fallbrook Public Utility Dist., supra, 143
Cal.App.4th at pp. 347-348.)
III
No Abuse of Discretion
Mother contends the family court abused its discretion by failing to require father
to rebut the section 3044 presumption with competent evidence. We disagree. As
explained above, both the instructor and father were competent to testify that father
completed the batterer treatment course. (See Evid. Code, §§ 700-702 [competency of
witnesses to testify].)
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DISPOSITION
The custody ruling is affirmed. Father is entitled to his costs on appeal. (Cal.
Rules of Court, rule 8.278(a)(1), (2).)
/s/
BOULWARE EURIE, J.
We concur:
/s/
HULL, Acting P. J.
/s/
ROBIE, J.
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