Filed 10/5/26 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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., C105076
Plaintiff and Appellant,
(Super. Ct. No. 22FL04683)
v.
J.R.,
Defendant and Respondent.
S.B. (father) and J.R. (mother) have a minor child. Although the family court
had ordered that father and mother would have temporary joint legal and physical
custody of the child pending trial on mother’s request for a Domestic Violence
Restraining Order (DVRO), once the trial court issued the DVRO, it expressly stated that
the prior joint custody order was no longer permissible based on the rebuttable
presumption in Family Code section 30441 that joint custody under such circumstances
would be detrimental to the best interest of the child.
Father appeals, arguing that the family court incorrectly treated the DVRO and
section 3044 as self-executing authority that displaced the prior custody order. Finding
no error or abuse of discretion, we will affirm the family court’s order.
1 Undesignated statutory references are to the Family Code.
1
BACKGROUND
In January 2023, the family court awarded the parties temporary joint legal and
physical custody of their minor child, utilizing a 2-2-3 parenting plan, pending further
review of custody at the trial on mother’s request for a DVRO.
The family court conducted the DVRO trial on April 28, 2023, and on May 1,
2023, it granted mother’s request and issued a one-year DVRO. The family court further
found that as a result of the DVRO, the section 3044 rebuttable presumption applied and
the existing 2-2-3 parenting plan was no longer permissible. The family court ordered
an interim plan that provided father “weekly parenting time from Thursday evenings to
Saturday evenings” and referred the parties to family court services mediation.
When the parties returned to court in July 2023, the family court received evidence
and determined that the section 3044 rebuttable presumption had not yet been rebutted.
It declined to make any changes to the custody and visitation orders, stating that father
should continue weekly therapy sessions, anger management courses, and parenting
classes. The family court granted father’s request for private child custody
recommending counseling (PCCRC) at father’s expense.
On December 20, 2023, the family court held a status hearing. In the findings and
order after hearing, filed on January 4, 2024, the family court indicated that father had
completed numerous courses in an effort to overcome the section 3044 presumption.
According to the family court, father sought joint legal and physical custody along with a
new parenting schedule. Mother opposed any changes. Because the family court had not
yet received a PCCRC report, it made no changes to custody or visitation and continued
the matter.
The family court held another status hearing on June 17, 2024. Still awaiting a
PCCRC report, it modified the DVRO to allow for peaceful exchanges of the child, and it
set a hearing on whether father had overcome the section 3044 rebuttable presumption.
2
On October 11, 2024, the family court heard mother’s request to renew the
DVRO. It found that father had violated the existing DVRO by contacting her directly,
recording her surreptitiously, and sending her gifts through third parties. The family
court extended the DVRO for five years.
On February 21, 2025, the family court heard father’s request for an order that he
had overcome the section 3044 rebuttable presumption. After considering the evidence,
the family court found that father had committed domestic violence and had not followed
the court’s orders. Father came within 100 yards of mother, used derogatory terms in
addressing her, demonstrated that he wanted to control her, and disturbed her peace.
The family court ruled that father had not overcome the section 3044 rebuttable
presumption.
Father nevertheless sought clarification that the parties had joint legal custody
under the family court’s 2023 custody order, and that no order had issued expressly
terminating joint legal custody. On July 9, 2025, the family court heard father’s motion
for clarification, and also his motion regarding child visitation and to change the pick/up
and drop/off time. Regarding the motion for clarification, the family court explained that
after issuance of the DVRO, mother had sole legal and physical custody of the child until
father could overcome the section 3044 rebuttable presumption. Father argued giving
mother sole legal custody now would be a change in custody; he was only seeking
clarification of the family court’s prior order. The family court reiterated that pursuant to
the current order “[m]other currently has sole legal and sole physical custody … . That is
without prejudice. You can bring another motion to overcome the [section] 3044
presumption. It’s not in stone. But in January you didn’t do it. … Therefore, mother
still has sole legal and sole physical custody until you can overcome the [section] 3044
factors.”
In its Findings and Order After Hearing, filed on July 14, 2025, the family court
wrote: “The Court clarifies that since issuance of the DVRO on 4/28/23, pursuant to
3
the presumption in … section 3044, [m]other has sole legal and sole physical custody
of [the parties’] child. Father has not yet overcome the [s]ection 3044 presumption.”
A week later, father filed a motion for reconsideration and asked for a statement of
decision.
Father’s motion for reconsideration was consolidated with two of his other
motions; all were heard on October 15, 2025. The family court found father had not met
his burden for reconsideration and denied his motion. The family court did not issue a
statement of decision.
On October 31, 2025, father filed a notice of appeal, identifying the family court’s
July 14, 2025 order as the challenged order. Even if we treat father’s appeal as a timely
challenge to the family court’s October 15, 2025 order, his contentions lack merit.
DISCUSSION
Father contends the family court incorrectly treated the DVRO and section 3044 as
self-executing authority that displaced the 2023 custody order. He argues there was no
express order granting mother sole legal custody, and the family court should not have
used his clarification motion to change custody retroactively.
Section 3044 provides in relevant part that “[u]pon a finding by the court that a
party seeking custody of a child has perpetrated domestic violence within the previous
five years against the other party seeking custody of the child, or against the child or
the child’s siblings, or against a person in subparagraph (A) of paragraph (2) of
subdivision (a) of Section 3011 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. This presumption may only be rebutted
by a preponderance of the evidence.” (§ 3044, subd. (a).)
As relevant to father’s challenge, section 3044 establishes a rebuttable
presumption against joint legal custody, which the trial court acknowledged after it
4
granted mother’s request for a DVRO, expressly stating on May 1, 2023, that the
January 2023 joint custody order was no longer permissible because the section 3044
presumption applied. It appears from the record that father understood the import of the
May 1, 2023 order, because he took steps to try and overcome the presumption, and at a
December 20, 2023 hearing, he proposed an order for joint legal and physical custody.
On this record, father has not established family court error or abuse of discretion.
DISPOSITION
The family court’s order is affirmed. Because no respondent’s brief was filed,
the parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
/S/
MAURO, Acting P. J.
We concur:
/S/
BOULWARE EURIE, J.
/S/
MESIWALA, J.
5