A.K. v. B.L. CA3

Opinion

Filed 9/1/26 A.K. v. B.L. CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 fourto -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.