Filed 7/29/26 S.B. v. J.R. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Sacramento)
S.B., C102802
Plaintiff and Appellant,
(Super. Ct. No. 22FL04683)
v.
J.R.,
Defendant and Respondent.
Plaintiff father S.B. (father) and defendant mother J.R. (mother) were previously
in a relationship and had a daughter together (the daughter).1 In April 2023, mother
obtained a one-year domestic violence restraining order (DVRO) against father.
In October 2024, the trial court granted mother’s request to renew the DVRO for
five years. Father, appearing in propria persona, appeals from that order, arguing that
(1) at the renewal hearing, the trial court denied him due process, and (2) the trial court’s
order rests on the false premise that his conduct during custody exchanges constituted
violations of the DVRO, and (3) the trial court misapplied the standard for renewal.
In a February 2025 order, the trial court found that father failed to rebut the
presumption in Family Code section 3044, which provides, where applicable, that “an
1 To protect their privacy, we refer to all involved by their initials and/or by their
relationships to one another. (Cal. Rules of Court, rule 8.90(b)(1), (10), (11).)
1
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….” (Fam. Code, § 3044,
subd. (a).)2 Father also appeals from that order, arguing that it rests on the materially
false premise that he failed to comply with a 52-week batterer’s treatment program
requirement which, according to father, was never ordered.
We will affirm both orders.
BACKGROUND
Prior Proceedings
On April 28, 2023, after a hearing, the trial court found that mother satisfied her
burden of proving by a preponderance of the evidence that father engaged in conduct that
amounted to abuse as defined in the Domestic Violence Prevention Act of 1993. (§ 6200
et seq.) The court issued a DVRO for a term of one year. Mother and her son from a
prior relationship were the protected persons. The court stated that, as a result of the
domestic violence finding, the presumption in section 3044 would apply.
More than a year after issuance of the original DVRO, and following the extension
of the DVRO, in an order filed June 18, 2024, the trial court ordered an exception to the
DVRO’s no-contact and stay-away orders for custody exchanges on Thursdays, when the
police department where those exchanges occurred was open. In an order filed July 16,
2024, the court added Saturdays to this exception, with the additional requirements that
father not exit his vehicle at the Saturday exchanges, and that an adult over 21 years old
be present to facilitate those exchanges.
2 Further undesignated section references are to the Family Code.
2
Hearing on Request for Renewal of DVRO
The Mother’s Case
E.M. was mother’s mother. She had participated in custody exchanges at a police
station in Sacramento. On two or three occasions, father asked her to deliver items to
mother, but she told him that mother would not accept them. One was a gift for Mother’s
Day, and one was a gift for mother’s birthday. Father made disparaging remarks about
mother in the daughter’s presence, including that mother was crazy and not mentally
correct. E.M. also testified that, after the most recent exchange, a car followed them,
frightening her.
J.C. was mother’s boyfriend. He had been present for custody exchanges. On
every occasion, father would get out of his car. Father would record the exchanges,
including mother, with a video camera. After the exchanges, father would sometimes
wait around, seemingly for mother to come out of the police station. After one exchange,
someone who had been talking to father in the parking lot followed mother and J.C. when
they drove away. Mother was scared.
Mother testified that, under the first restraining order, father was not supposed to
show up at the custody exchanges, yet he showed up every time. Father would send gifts
for her with the daughter, including flowers, cards, and a photo, and she would throw the
gifts away. Father would also try to convey items to her through others during the
custody exchanges. Additionally, he would relay messages with family members instead
of communicating through the app they were supposed to use to discuss custody matters.
Mother felt uncomfortable during the custody exchanges because father was
constantly recording her with a video camera. He recorded the entirety of the exchanges.
Mother also stated that father was confrontational during the exchanges. In one instance,
he “stormed into the police station, [father] was accusing [her] of lying, speaking to the
cop. [Father] [was] very loud, aggressive, and confrontational.” On another occasion,
3
mother was inside the police station and father sent text messages stating that he would
wait out front. Mother had to get a police officer to walk her outside, and the officer
effectuated the custody exchange.
Father would wait outside the police station after custody exchanges until mother
walked out. Then he would stand around watching her until she left. Mother testified
that she had been followed by a man after a custody exchange. J.C. told her that the man
who followed them had pulled into the police station parking lot at the same time as
father, and he had talked with father. On another occasion, when mother and E.M. drove
away from the police station, father’s father followed them.
Mother testified that father had disturbed her peace or emotional calm. He never
stayed 100 yards away during exchanges. She had found it necessary to call law
enforcement to intervene. Mother was worried about future harm in the event the
restraining order was terminated.
The Father’s Case
Father testified that he was more afraid of mother than she was of him based on
the way she abused the restraining orders. He claimed that mother was highly
manipulative. He testified that no order prohibited him from being present at custody
exchanges. He denied being aggressive or threatening. Father emphasized he had no
criminal record. He testified he never instructed his parents to follow mother. Father
acknowledged that, when performing custody exchanges, he did come closer than 100
yards of mother. He acknowledged on one occasion going into the police station and
coming within approximately 10 to 15 feet of mother. He repeatedly testified that he
used a video recorder during custody exchanges to protect himself from false allegations.
He acknowledged breaking a door after a conflict. He acknowledged throwing a soda
can against a garage door in frustration. He also acknowledged spanking mother’s son
4
while he was naked in the shower. Father denied that the court ordered a 52-week
batterer’s treatment program.
Order Renewing DVRO
In findings and an order after a hearing filed October 14, 2024, the trial court
found that mother met her burden for renewal. The court based its determination on the
parties’ demeanors and interactions. The court stated that father presented as aggressive,
and he spoke over witnesses, counsel, and the court. The court noted that mother
presented as fearful of father. The court did not find credible father’s representation that
he was more afraid of mother than she was of him.
The trial court relied on mother’s testimony about father’s violations of the
original DVRO, including surreptitiously recording custody exchanges, including inside
the police station. During that exchange, according to father’s own testimony, he came
within 10 to 15 feet of mother, and, according to mother, he was aggressive, loud, and
demanding. The court noted that, on another occasion, father texted mother to meet in
front of the police station, but the court noted that the original DVRO did not include an
exception for contact related to custody exchanges.
The trial court stated that father “admits he violated the no-contact order many
times during the initial year the DVRO was in effect,” but claimed that the trial court
“erred by not granting him an exception.” The court noted that, in June and July 2024, it
had issued orders allowing contact during custody exchanges, but “Father’s actions up
until that point violated the express provisions of the DVRO.” The court noted that father
gave items to mother through others on at least three occasions, which also violated the
DVRO. The court stated that father’s recording of mother during custody exchanges,
surreptitiously and without her permission, violated the DVRO.
Concluding that mother satisfied her burden of proving by a preponderance of the
evidence that she remained reasonably apprehensive of future abuse, the trial court
5
granted her request for renewal of the DVRO for five years, to expire on October 11,
2029.
Hearing on Section 3044 Presumption
Again, for context, “section 3044 establishes a rebuttable presumption that
awarding custody of a child to a parent who has committed an act of domestic violence
against the other parent within the previous five years is detrimental to the best interest of
the child.” (In re Marriage of J.G. & K.G. (2025) 110 Cal.App.5th 1214, 1219, fn.
omitted.) We provide an abbreviated summary of the hearing testimony because much of
the testimony is not relevant to any issue raised on this appeal.
The Father’s Case
In an opening statement which father adopted as testimony, father stated that, in
originally granting the DVRO, the trial court found much of mother’s testimony to be
lacking in credibility, and found that his conduct resulted more from the toxic character
of the relationship than father’s desire to exercise control over mother. Father
emphasized his unsupervised visitation with the daughter as proof that the court did not
deem him a danger to the daughter. Father stated that, in working with his therapist, he
had learned skills such as setting healthy boundaries and recognizing behavior designed
to elicit a reaction and disengage from it. He testified he had never been accused of or
convicted of any crime.
The trial court asked if father had attended a domestic violence course, and father
stated that he had attended 12-week anger management and parenting classes. He did not
complete a 52-week course.
T.B. was father’s mother. She testified that father was a great father to the
daughter, and that the daughter loved being with him. Father provided a safe and stable
living environment for the daughter. T.B. never heard father speak negatively about
mother to the daughter.
6
A.T. was father’s girlfriend. She testified that he was a good father. The daughter
seemed to feel safe and comfortable when at his house. A.T. had never heard father
speak negatively about mother in the daughter’s presence. Rather, father encouraged the
relationship between mother and the daughter. He kept photographs near the daughter’s
bed of mother and her family. The daughter never wanted to leave father’s house.
A.T.’s sister found father to be a kind, patient, and involved parent. She testified
that father provided a safe and stable home for the daughter, and she had never heard
father speak negatively about mother.
The Mother’s Case
E.M. participated in the custody exchanges. She testified that, in the daughter’s
presence, father referred to mother as emotionally crazy. On two or three occasions, he
tried to give E.M. items to give to mother.
Mother testified that it was difficult communicating with father about the
daughter. “If I say she’s sick, he tells me I’m making things up or takes her for a second
opinion. Stops giving her her medication. If I say somebody hit her at school, he has to
verify with the school, even though there’s an incident report…. It’s just one thing after
another. [¶] Like, he tells me I’m lying. I’m making things up in my head…. I don’t
know how to communicate with somebody who challenges everything I try to
communicate about” the daughter.
Mother testified that father did not want the daughter to go to school. After
issuance of the DVRO, the daughter regressed and stopped speaking and socializing, and
she tested low in socialization and communication skills. Mother placed the daughter in
a Head Start program. Father did not agree and was angry.
Order Finding that Father Failed to Rebut the Section 3044 Presumption
In findings and order after hearing filed February 21, 2025, the trial court found
that father failed to rebut the section 3044 presumption. Among other things, the court
7
stated that to rebut the presumption, “the court should find that Father has completed a
batter[er’s] treatment program and parenting classes. Father completed parenting classes
and a 12 week batter[er’s] treatment program, but he was ordered to complete a 52 week
course.”
DISCUSSION
I
Self-represented Litigants and Appellate Procedure
As a self-represented litigant, father “is entitled to the same but no greater
consideration than other litigants.” (County of Sacramento v. Singh (2021)
65 Cal.App.5th 858, 861 (County of Sacramento).) “Accordingly, he must follow the
rules of appellate procedure.” (Ibid.) “Those rules require an appellate brief to support
each point by argument and, if possible, by citation to authority and to provide a citation
to the record for a factual assertion.” (Ibid., citing Cal. Rules of Court, rule
8.204(a)(1)(B) & (C).) “ ‘We may disregard legal arguments that are not supported by
citations to legal authority [citation] or are conclusory [citation].’ ” (County of
Sacramento, at p. 861.) “Further, we may treat a point that is not supported by cogent
legal argument as forfeited.” (Ibid.)
“ ‘A judgment or order of the lower court is presumed correct. All intendments
and presumptions are indulged to support it on matters as to which the record is silent,
and error must be affirmatively shown.’ ” (Denham v. Superior Court (1970) 2 Cal.3d
557, 564.) “It is the appellant’s burden to demonstrate the existence of reversible error.”
(Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 766.)
8
II
Due Process
“The fundamental requirement of due process is the opportunity to be heard ‘at a
meaningful time and in a meaningful manner.’ ” (Mathews v. Eldridge (1976) 424 U.S.
319, 333.) “Due process requires ‘notice, an opportunity to respond, and a hearing.’ ”
(Shenefield v. Shenefield (2022) 75 Cal.App.5th 619, 632.)
Father argues that the trial court’s order renewing the DVRO must be reversed or
vacated because he was denied basic due process at the hearing. We disagree.
A. Mother’s Failure to Timely Serve Witness List
First, father argues that he was deprived of due process because mother did not
serve him with her witness list until the day of the hearing.
Mother’s trial brief, which included her witness list, was filed in the court, and
served on father, on the day of the renewal hearing. Father objected to the testimony of
E.M. and J.C., claiming he was not informed that they would be witnesses and he had
therefore been unable to prepare for their testimony.
The trial court noted that father had been aware of the positions of the two
witnesses since he was served with the request to renew with exhibits. Father
acknowledged that he had received the request to renew and he was aware of its exhibits.
Father admitted that he had not attempted to conduct any discovery. The court stated that
it would allow E.M. and J.C. to testify. Father argued that the court’s ruling violated due
process, but the court found there was no surprise, the witnesses were listed on the
request to renew, father knew they were percipient witnesses, and yet he took no steps to
conduct discovery.
Father cites to no legal authority in this portion of his argument. As stated, “ ‘[w]e
may disregard legal arguments that are not supported by citations to legal authority
[citation] or are conclusory.’ ” (County of Sacramento, supra, 65 Cal.App.5th at p. 861.)
9
Moreover, we note that mother’s request to renew identified E.M. as someone
father had attempted to use to communicate with mother. A letter from E.M. describing
the parties’ relationship and incidents that occurred during custody exchanges was an
exhibit attached to the request to renew. Both E.M. and J.C. were present at custody
exchanges with father. Father knew E.M. and that she was present at numerous custody
exchanges. He interacted with her during custody exchanges. Additionally, it appears
that father knew J.C. was mother’s boyfriend. He knew J.C. was present during custody
exchanges. Father knew who these witnesses were, he knew that they had been present at
custody exchanges, and he had interacted with E.M. at the exchanges. Father knew or
should have known the nature of these witnesses’ testimony as it related to the custody
exchanges. In many respects, their testimony overlapped with that of mother. Father
enjoyed every opportunity to cross-examine these witnesses. Father cannot plausibly
claim surprise or allege an inability to adequately prepare for the testimony of these
witnesses.
We conclude father has failed to establish that he was deprived of his due process
rights by the failure of mother’s attorney to serve her witness list earlier.
B. “Self-directed File Review”
Father argues that the trial court improperly “directed Father to the court file,
stated that the file had long been available to him, and faulted him for not reviewing
proofs of service and conducting discovery in advance.” According to father, the trial
court “also made clear it would not review the file for Father and would not delay trial
further.” Father claims that, in response to his due process objections, the trial court
“plac[ed] the burden on Father to search the file himself and to have anticipated the
opposing evidentiary case through discovery.”
In the pages of the reporter’s transcript father cites, father asked the trial court to
show him where in the file J.C. was listed as a potential witness. The court responded
10
that it would not “be doing your research” or reviewing the file for him. The court stated
that it would “not be reviewing the file for you to find information that can be found from
you reviewing your own information.” The court later continued: “[T]his file has been
available to you at all times since last May for you to perform your own research in the
file to identify the proofs of service, the dates, when you were served. Certainly, you
could have kept track of that yourself, or you could have reviewed materials in the file
before trial.” Later, father asked, “So I have to go into the file myself and look for proofs
of service to see if she properly served me?” The trial court responded that it could not
provide father with legal advice. The court continued, “You’re asking me to tell you
what you need to do to protect your rights, and that I cannot do.” When father stated that
he was not served with a declaration, the trial court stated that the “proofs of service state
otherwise.” Father asked if he had “to go search for proofs of service for something she
may have submitted,” and the court responded that he must be diligent.
Father fails to present cogent argument or cite to authority for the premise that the
trial court erred or violated his due process rights by refusing to review the file for father
or offer legal advice, including on matters related to service. “ ‘We may disregard legal
arguments that are not supported by citations to legal authority [citation] or are
conclusory [citation].’ [Citations.] Further, we may treat a point that is not supported by
cogent legal argument as forfeited.” (See County of Sacramento, supra, 65 Cal.App.5th
at p. 861.)
C. Service of Mother’s Declaration on Father’s Former Attorney
Next, father argues that he was denied due process because mother served her
declaration on his former counsel when that attorney no longer represented him, and the
trial court allowed mother to testify to matters in that declaration. It appears the parties
agreed that mother’s declaration was served on counsel no longer representing father.
The court ruled that it would “disregard the declaration as improperly served. What that
11
does not do, however, that does not prevent the [mother] from testifying today to
information in her declaration.” To this, father responded, “Thank you, your Honor.”
Insofar as father objects to the declaration, the trial court did not admit it into
evidence or consider it. Additionally, when the court stated it would permit mother to
testify, father did not object, but rather thanked the court. Thus, father forfeited any
objection to mother’s testimony. (See In re Marriage of Davila & Mejia (2018)
29 Cal.App.5th 220, 227 [husband forfeited contention that the trial court erred by
considering wife’s testimony by failing to object to the testimony in the trial court].)
Subsumed in this argument, father discusses four exhibits to mother’s declaration
that were admitted at the hearing. The exhibits were photos of: mother’s cousin during
an exchange “carrying things that [father] sent” (exhibit P); E.M. picking up the daughter
and father “giving them a birthday gift for” mother (exhibit Q); A.T. with the daughter
who was holding flowers that father sent to mother as a gift (exhibit R);, and father
getting out of his car at a custody exchange (exhibit S). Father argues that the substance
of the declaration was presented through mother’s testimony and these exhibits, leaving
him “to defend in real time without meaningful advance notice.”
In her request to renew the DVRO, mother stated as reasons for her fear of father,
among other things, that he violated the DVRO repeatedly, he “has used third parties to
communicate with me, specifically [E.M.] and [L.M.],” and he “has used third parties to
send me items and gets upset when they refuse to be used as messengers.” Additionally,
letters written by E.M. and L.M. detailing their experiences with father during exchanges,
including his efforts to have them relay items and messages to mother, were exhibits to
the request to renew.
Father’s claims of surprise and inability to investigate and defend against claims
concerning events occurring at custody exchanges, depicted in these exhibits, including
his use of third parties to convey items and messages to mother, are meritless. Father was
present for at least one of these custody exchanges. Additionally, based on information
12
in her request to renew and its exhibits, father was on notice that mother intended to
prove these allegations. Moreover, father again cites no legal authority in support of his
argument. (See County of Sacramento, supra, 65 Cal.App.5th at p. 861.) Father has not
established any due process violation.
D. Mother’s Trial Materials
Lastly, father argues that he was deprived of due process because the hearing
“proceeded on first-time-at-trial exhibits” and “ ‘new claims.’ ” (Bold typeface omitted.)
He returns to his argument that, while he had notice of the request to renew and its
attachments, he did not receive mother’s declaration and its exhibits, as well as mother’s
trial brief and witness list. His claims largely reprise his previous arguments. He also
does not identify with specificity any “ ‘new claims’ ” advanced by mother or newly
presented exhibits. “We are not required to scour the record in search of support for a
party’s factual statements and may disregard such unsupported statements.” (Harshad &
Nasir Corp. v. Global Sign Systems, Inc. (2017) 14 Cal.App.5th 523, 527, fn. 3.) Nor
does father cite any legal authority in this portion of his argument. (See County of
Sacramento, supra, 65 Cal.App.5th at p. 861.)
E. Due Process Conclusion
Father has failed to satisfy his burden of demonstrating any due process violation
or the existence of reversible error. (See generally Del Real v. City of Riverside, supra,
95 Cal.App.4th at p. 766 [it is appellant’s burden to demonstrate reversible error].)
III
Renewal of DVRO
Father argues that the renewal of the DVRO rests on a false premise, and that the
trial court misapplied the renewal standard. Father argues that the trial court improperly
13
treated his conduct during custody exchanges as violations of the DVRO. This,
according to father, “injected a false premise into the renewal analysis.” We disagree.
DVROs may be renewed “upon the request of a party, either for five or more
years, or permanently, at the discretion of the court, without a showing of further abuse
since the issuance of the original order.” (§ 6345, subd. (a).) In “deciding whether to
grant a renewal request under section 6345, ‘[a] trial court should renew the protective
order, if, and only if, it finds by a preponderance of the evidence that the protected party
entertains a “reasonable apprehension” of future abuse.’ [Citation.] ‘It is not enough this
party entertain a subjective fear the party to be restrained will commit abusive acts in the
future. The “apprehension” those acts will occur must be “reasonable.” That is, the court
must find the probability of future abuse is sufficient that a reasonable woman (or man, if
the protected party is a male) in the same circumstances would have a “reasonable
apprehension” such abuse will occur unless the court issues a protective order.’
[Citation.] ‘In evaluating whether the requesting party has a reasonable apprehension of
future abuse, “the existence of the initial order certainly is relevant and the underlying
findings and facts supporting that order often will be enough in themselves to provide the
necessary proof to satisfy that test.” ’ ” (In re Marriage of Martindale & Ochoa (2018)
30 Cal.App.5th 54, 59; accord, Ritchie v. Konrad (2004) 115 Cal.App.4th 1275, 1288,
1290-1291.) “The trial court’s ruling on a request to renew a [DVRO] is reviewed for an
abuse of discretion.” (Eneaji v. Ubboe (2014) 229 Cal.App.4th 1457, 1463.) “ ‘To the
extent that we are called upon to review the trial court’s factual findings, we apply a
substantial evidence standard of review.’ ” (In re Marriage of G. (2017) 11 Cal.App.5th
773, 780.)
The original April 28, 2023, DVRO contained a no-contact order and a stay-away
order requiring father to stay 100 yards away from mother. These orders did not include
any exception for peaceful contact for custody exchanges. In granting mother’s request
for renewal of the DVRO, the trial court relied on a number of factors. Among these, the
14
court relied on the fact that, during one custody exchange, father came within 10 to 15
feet of mother. More broadly, the court relied on the fact that father admitted that he
violated the no-contact order in the original DVRO many times before exceptions were
added, which occurred in June and July 2024.
Thus, the original DVRO contained no-contact and stay-away orders protecting
mother, there was no exception for peaceful contact for custody exchanges, and father
admitted that he violated these provisions by contacting and approaching mother during
custody exchanges.
Father contends that the trial court’s “custody orders directed or presupposed
Father’s participation in exchanges.” (Bold typeface omitted.) His citations to the record
for this premise are to matters occurring before the original DVRO. In an order filed
January 9, 2023, the court stated that custody exchanges would be at the police station,
and that, as the parties agreed, father’s mother was authorized to conduct exchanges “if
[father] has to go to work.” This, according to father, indicated that he “was ordinarily
the exchange participant.” An order dated January 17, 2023, included language stating
that “the parties shall exchange the child” at a specified time. Contrary to father’s
characterization, these do not amount to a court-ordered “exchange framework.”
Even if these directives in prior orders did contemplate the structure for custody
exchanges, they predated the April 28, 2023, DVRO, which did not include exceptions to
the no-contact and stay-away orders for peaceful custody exchanges. Father emphasizes
that, on the issuance of the original DVRO, the trial court ordered that all “prior orders
not in conflict remain in full force and effect.” To the extent that the court’s prior orders
contemplated peaceful custody exchanges carried out by the parties, those orders would
conflict with the DVRO, which omitted exceptions to the no-contact and stay-away
orders for peaceful custody exchanges.
Nor does the fact that the trial court ordered exceptions for peaceful custody
exchanges in June and July 2024, more than a year after issuance of the DVRO, establish
15
that such exceptions always existed under the DVRO. The court ordered the exceptions
because they were not previously contemplated by the DVRO. Neither the June and July
2024 establishment of exceptions for peaceful custody exchanges, nor the amendment of
the renewed DVRO to provide for those same exceptions, establish that they existed in
the original DVRO as father essentially argues. To the contrary, the record affirmatively
establishes that they did not. As the trial court stated, the “original DVRO did not
include an exception for contact related to custody exchanges….”
Father has not satisfied his burden of establishing that the trial court abused its
discretion in granting mother’s request for renewal of the DVRO.
IV
Section 3044 Rebuttable Presumption
Father argues that the order in which the trial court determined that he failed to
rebut the section 3044 presumption must be vacated because it rests on a materially false
premise that he failed to comply with a 52-week batterer intervention program
requirement. We disagree that reversal is warranted.
In making determinations regarding child custody and visitation, the court’s
“ ‘overarching concern is the best interest of the child.’ ” (In re Marriage of Brown &
Yana (2006) 37 Cal.4th 947, 955.) As stated, “section 3044 establishes a rebuttable
presumption that awarding custody of a child to a parent who has committed an act of
domestic violence against the other parent within the previous five years is detrimental to
the best interest of the child.” (In re Marriage of J.G. & K.G., supra, 110 Cal.App.5th at
p. 1219, fn. omitted.) “ ‘This presumption is mandatory and the trial court has no
discretion in deciding whether to apply it: “[T]he court must apply the presumption in
any situation in which a finding of domestic violence has been made.” ’ ” (Id. at
p. 1221.) “ ‘The legal effect of the presumption is to shift the burden of persuasion on the
best interest question to the parent who the court found committed domestic violence.’
16
[Citation.] The presumption may only be rebutted by a preponderance of the evidence.”
(Ibid.; see § 3044, subd. (a).)
“ ‘Subdivision (b) of section 3044 sets forth the factors a court must consider
when assessing if the presumption has been rebutted. First, the court must be satisfied
that the award of custody is in the child’s best interest. [Citation.] Second, the court
must be satisfied that on balance, the [seven] additional enumerated factors support an
award of custody. Those factors include whether the perpetrator has successfully
completed [1] a batterer’s treatment program, [2] drug or alcohol counseling, and/or a [3]
parenting class, also, whether the perpetrator [4] is on probation or parole, [5] is the
subject of a restraining order, or [6] has committed further acts of domestic violence.’ ”
(In re Marriage of J.G. & K.G., supra, 110 Cal.App.5th at p. 1222; see § 3044, subd.
(b).) A recently-added seventh factor addresses whether the perpetrator is a restrained
person in possession or control of a firearm or ammunition. (§ 3044, subd. (b)(2)(G).)
“ ‘ “We review custody... orders for an abuse of discretion, and apply the
substantial evidence standard to the … court’s factual findings. [Citation.] 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., supra,
110 Cal.App.5th at p. 1222.)
In the order filed February 21, 2025, finding that father failed to rebut the section
3044 presumption, the trial court stated: “To rebut the presumption against awarding
Father Sole or Joint custody, the court should find that Father has completed a batter[er]’s
treatment program and parenting classes. Father completed parenting classes and a 12
week batter[er]’s treatment program, but he was ordered to complete a 52 week course.
[Citation.] To rebut the presumption, Father must show that he has not violated the
existing restraining orders. Father has addressed Mother with derogatory terms since the
orders were entered and has approached her within 100 yards. Mother has convinced
prior courts that she remains reasonably apprehensive of future abuse. [¶] The essence
17
of domestic violence is the perpetrator seeking to control the protected party. Father has
demonstrated that he wants to control the Mother. He wants her to agree to his
interpretation of the court’s orders and vary them to his satisfaction. He does this in a
manner that clearly disturbs her peace. [¶] … [¶] In conclusion, the court believes that
both parents want what is best for their daughter. The father has committed domestic
violence and has not followed the court’s orders. Therefore the presumption has not been
rebutted.”
On appeal, father relies on an order filed June 9, 2025, included in the record as
augmented, in which the trial court granted his motion to correct a clerical error on the
January 15, 2025, first amended renewed DVRO. “The court may, upon motion of the
injured party, or its own motion, correct clerical mistakes in its judgment or orders as
entered, so as to conform to the judgment or order directed….” (Code Civ. Proc., § 473,
subd. (d).) “ ‘The difference between judicial and clerical error rests not upon the party
committing the error, but rather on whether it was the deliberate result of judicial
reasoning and determination. The distinction between clerical error and judicial error is
whether the error was made in rendering the judgment, or in recording the judgment
rendered.’ ” (Machado v. Myers (2019) 39 Cal.App.5th 779, 797.) Having undertaken a
review of the original DVRO, the trial court found that a batterer intervention program
“was not included as part of the original DVRO but was struck out by” the issuing judge.
Therefore, the first amended renewed DVRO filed January 15, 2025, contained a clerical
error in checking box 24, indicating a batterer intervention program had been ordered, as
that requirement was not included as part of the original April 28, 2023, DVRO. The
court issued a second amended renewed DVRO. To be clear, no party here has appealed
from this June 9, 2025, order, and thus this order itself is not the subject of controversy
on appeal.
As stated, in concluding father failed to rebut the section 3044 presumption, the
trial court relied, among other things, on father’s failure to complete a court-ordered 52-
18
week batterer’s treatment program. In light of the order filed June 9, 2025, there is not
substantial evidence that father was ordered to complete a batterer’s treatment program or
that this section 3044, subdivision (b)(2)(A) factor should militate against his efforts to
rebut the section 3044 presumption.
Father argues that, because he was not ordered to complete a 52-week batterer’s
program, and because the trial court based its decision, in part, on his failure to do so, the
order finding that he failed to rebut the section 3044 presumption “rests on a materially
false premise” and must be reversed. He argues that “the rebuttal calculus is distorted.
This is prejudice. The error did not concern a collateral detail; it went to Father’s ability
to rebut the presumption and to the court’s ultimate custody determination. Without the
false ‘noncompliance’ premise, the court must reassess rebuttal under the correct factual
landscape and the statutory factors that apply.” He argues that a “ruling that turns on a
nonexistent requirement is reversible legal error and, at minimum, must be vacated so the
trial court can conduct a new section 3044 analysis under correct facts and law.” He
further argues that we may not “presume the error was harmless because other factors
may have supported the ruling…. Where a custody decision rests in part on a materially
false premise, the proper remedy is to vacate and remand for the trial court to perform the
section 3044 analysis anew, using only accurate premises and applying the correct legal
framework.”
In this portion of his brief, father has cited no legal authority in support of his
arguments that the trial court’s error in relying on the fact that he failed to complete a 52-
week batterer’s treatment program is reversible error. (See County of Sacramento, supra,
65 Cal.App.5th at p. 861.) Elsewhere in his brief, he does cite to a case where the
appellate court reversed because the trial court “expressly relied on a consideration
section 3044 forbids” (Ellis v. Lyons (2016) 2 Cal.App.5th 404, 417), resulting in a trial
court decision that was “infected by legal error….” (Id. at p. 418.) He cites another case
in which the appellate court issued a peremptory writ of mandate where a “move-away
19
order terminated the custody trial without affording Father an opportunity to
meaningfully rebut the section 3044 presumption,” where the trial court “focused upon
one of the listed statutory factors in rebutting the presumption: whether he had
completed the 52-week batterer’s program,” which “was a physical impossibility because
only 32 weeks had elapsed since the court directed him to attend,” and where the trial
court nonetheless concluded the custody proceedings, finding “ ‘that Father has not met
his burden as to [section] 3044.’ ” (Keith R. v. Superior Court (2009) 174 Cal.App.4th
1047, 1056, fn. omitted.) Neither of these cases are analogous to the circumstances here.
The trial court did not rely on considerations forbidden by section 3044, these
proceedings were not “infected by legal error” (Ellis, at p. 418), and father was afforded
ample opportunity to rebut the section 3044 presumption. These cases do not compel the
conclusion that the trial court’s error is per se reversible and an assessment of prejudice is
inappropriate.
“Before any judgment can be reversed for ordinary error, it must appear that the
error complained of ‘has resulted in a miscarriage of justice.’ [Citation.] Reversal is
justified ‘only when the court, “after an examination of the entire cause, including the
evidence,” is of the “opinion” that it is reasonably probable that a result more favorable to
the appealing party would have been reached in the absence of the error.’ ” (In re J.S.
(2011) 196 Cal.App.4th 1069, 1078.)
In concluding that father failed to rebut the section 3044 presumption, in addition
to father’s failure to complete a 52-week batterer’s treatment program, the trial court
stated that father “must show that he has not violated the existing restraining orders.
Father has addressed Mother with derogatory terms since the orders were entered and has
approached her within 100 yards.” Thus, the court considered the statutory factor that
father was restrained by a restraining order and had not complied with its terms and
conditions. (See § 3044, subd. (b)(2)(E).)
20
The court also considered whether father “has committed further acts of domestic
violence” (§ 3044, subd. (b)(2)(F)), stating that the “essence of domestic violence is the
perpetrator seeking to control the protected party. Father has demonstrated that he wants
to control the Mother. He wants her to agree to his interpretation of the court’s orders
and vary them to his satisfaction. He does this in a manner that clearly disturbs her
peace.” (See § 6211 [defining domestic violence as “abuse” perpetrated against
enumerated persons]; In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1497
[“section 6320 broadly provides that ‘disturbing the peace of the other party’ constitutes
abuse for purposes of the DVPA”].)
Following two “aside[s]”, the court concluded: “The father has committed
domestic violence and has not followed the court’s orders. Therefore the presumption
has not been rebutted.”
Father has advanced no factual or legal argument with citation to authority for the
premise that, in the absence of the error in relying on his failure to complete a 52-week
batterer’s treatment program, it is reasonably probable that the trial court would have
found that he rebutted the section 3044 presumption. Instead, he has only asserted in
conclusory fashion, without cogent legal argument and citation to authority (see County
of Sacramento, supra, 65 Cal.App.5th at p. 861), that the error was prejudicial warranting
reversal. As such, he has failed to satisfy his burden of demonstrating the existence of
reversible error. (See Del Real v. City of Riverside, supra, 95 Cal.App.4th at p. 766.)
21
DISPOSITION
The order dated October 11, 2024, and filed October 14, 2024, granting renewal of
the DVRO for a term of five years is affirmed. The order filed February 21, 2025,
concluding that father failed to rebut the section 3044 presumption is affirmed. In the
interests of justice, no costs are awarded because mother did not file a respondent’s brief.
(See Cal. Rules of Court, rule 8.278(a)(5); Farnum v. Iris Biotechnologies Inc. (2022)
86 Cal.App.5th 602, 614.)
\s\
KRAUSE, J.
We concur:
\s\
RENNER, Acting P. J.
\s\
BOULWARE EURIE, J.
22