California Court of Appeals, Fourth District, First Division
In re the Marriage of ELENITA L. and ROMER N. FAJOTA. ELENITA L. FAJOTA, Appellant,
ROMER N. FAJOTA, Respondent.
CONSOLIDATED APPEALS from a judgment of the Superior Court of San Diego County Nos. D542803 and DV031757, Robert C. Longstreth and Michael S. Groch, Judges.
[Copyrighted Material Omitted]
Reed, Smith, Anne M. Grignon, Margaret A. Grignon; San Diego Volunteer Lawyer Program, Inc., Kris Lee Jacobs; Family Violence Appellate Project and Erin Canfield Smith, for Appellant.
Romer N. Fajota, in pro. per., for Respondent.
Elenita L. Fajota appeals from an order of the trial court granting her ex-husband, Romer N. Fajota, joint legal custody of the couple's three children. According to Elenita, Romer admitted to engaging in acts of domestic violence, and the trial court found that Romer had committed domestic violence against her. Elenita contends that in awarding Romer joint legal custody, the trial court failed to apply the rebuttable presumption set forth in Family Code section 3044. Section 3044 provides that it is not in a child's best interest to award joint or sole legal and/or physical custody to a parent who has been found to have committed domestic violence against the other parent, the child, or the child's siblings.
We agree with Elenita that the trial court abused its discretion by failing to apply the mandatory presumption set forth in section 3044 when it determined that the parties would share joint legal custody of the children. We therefore reverse the custody order of the trial court contained in the judgment of dissolution, and remand the matter to the trial court to apply the mandatory presumption in determining the custody of the children.
FACTUAL AND PROCEDURAL BACKGROUND
Elenita and Romer married in June 2005 and have three minor children together. Beginning in 2006, Romer became physically violent with Elenita.
Romer committed acts of violence against Elenita even while she was pregnant with their second child. Between 2006 and 2008, Romer would charge at Elenita, throw things at her, destroy her belongings, and push her until she fell. Elenita obtained a restraining order against Romer in 2007 after a particularly violent episode. Romer was arrested in 2008 after he grabbed Elenita's hair, jerked her head forward and back, and caused her head to hit a wall.
By the end of 2008, Elenita had moved to Texas with the children and the couple separated. Romer subsequently also moved to Texas. The parties divorced in Texas in 2010.
Elenita and Romer later reconciled. Elenita believed that Romer had changed. Elenita, Romer, and the children moved back to California in the spring of 2012, and Elenita and Romer remarried in October of that year. Three months later, Elenita learned that Romer had been unfaithful. When Elenita told Romer that she wanted another divorce, he again began engaging in physical violence and emotional abuse directed at her. At various points in time, Romer called Elenita "stupid, " threw an iPad at her, threw a burrito at her, and threw an iPhone at her. In February 2013, while Elenita was driving, Romer became angry over something that Elenita had said. He struck her on the head and ordered her to "shut up, and don't talk about me like that ever again."
In approximately March 2013, Elenita told Romer that their relationship was over. However, they continued to live together in the family home. In April, Romer and Elenita got into an argument. Romer ordered Elenita not to leave the house. When Elenita picked up the car keys in preparation to leave, Romer came up behind Elenita and grabbed her. Romer was yelling at her. He pinched her hand so hard that it began to bleed. Two of the children were present during this incident, and one of the children began to cry. When Elenita threatened to call the police, Romer stopped the abuse and started being nice to her. Later that day, while Elenita was picking up two of the children from school, Romer moved out of the house.
In addition to the abuse that Romer has perpetrated against her, Elenita has witnessed Romer spanking the children "multiple times in a row" and has noticed the children "ducking and covering" when in Romer's presence.
Elenita filed a Request for Domestic Violence Restraining Order against Romer in April 2013. She also requested that the court award her sole legal and physical custody of the children. Elenita filed a declaration in support of her requests in which she detailed Romer's abuse from 2006 to the present. The court issued a temporary restraining order, effective from April 29, 2013
to May 15, 2013, and awarded temporary sole legal and physical custody to Elenita, pending a hearing on the request for a permanent restraining order.
Romer filed a declaration in response to Elenita's request for a domestic violence restraining order in which he admitted to virtually all of the physical contact that Elenita had detailed. However, he disputed the extent of the harm that he had caused by this contact.
Elenita filed a petition for dissolution of the marriage on May 14, 2013. She requested sole legal and physical custody of the children, and filed a declaration in support of the request in which she detailed the history of Romer's acts of domestic violence.
The trial court, Judge McAdam,  held a hearing on Elenita's request for a restraining order on May 15. Elenita testified about many of the incidents of abuse. Romer also testified. He admitted that he had grabbed keys from Elenita during one of the incidents, and also admitted to hitting her on the back of the head in the presence of the children. When asked to rate the severity of that incident on a scale of one to five, with "five being knock somebody out with a slap, one being sort of a love tap, " Romer said that it ...