In re Marriage of Willis and Costa-Willis

Mother got a domestic violence restraining order against Father. At the hearing, the trial court sua sponte (on its own) granted Mother sole legal and physical custody of the minor child even though Mother did not check the box to indicate that she wanted the court to change custody in her restraining order request, request that the restraining order protect the minor child, mention custody in her declaration, or request a modification of custody at the hearing.

Despite granting Mother sole custody it maintained the parties’ custody order, which gave both parents about equal parenting time.

Mother appealed, arguing that the trail court should have modified the parties’ parenting because 3044 applied as there was a finding of abuse against Father. The Court of Appeal disagreed with Mother, finding that the presumption under section 3044 only applies when a party is seeking custody or a modification of custody. Because neither Mother nor Father asked for a change in custody, the rebuttable presumption under section 3044 did not arise in this case.