Unreported / Non-Citable
Background
Audrey Chirip-Riggs (Mother) and Aaron Hernandez (Father) are the unmarried parents of N.H., born in 2024; Father is the undisputed biological father. In November 2024 the family court ordered joint legal and physical custody with alternating two-day periods, alternating weekends, and shared holidays, consistent with an October 2024 mediation agreement and Family Court Services recommendations. On January 24, 2025, Mother—then 22, with Father 36 and N.H. almost one—petitioned for a domestic violence restraining order (DVRO) against Father and obtained a temporary restraining order. Her petition alleged emotional, physical, and verbal abuse from July 2023 through November 2024: hiding her car keys during a Yosemite camping trip, throwing a chair while she was pregnant, throwing a screwdriver and punching holes in walls, blocking her from leaving and grabbing her during a move-out, yanking a diaper bag while holding the infant, and yelling at her in a parking lot. She requested protection only for herself and her dog, sought no custody or visitation orders, and attached no child custody form (DV-105).
Father responded on February 14, 2025, denying the abuse allegations but agreeing with the existing custody order; neither party requested a custody change, and neither attached form DV-105. At the February 18, 2025 hearing, the trial court stated the issues were the DVRO request and child support and tax implications. After testimony from Mother, Father, and Father's mother (PGM), the court found a DVRO necessary because Father disturbed Mother's peace and was coercive and controlling, and it found PGM not credible because photographs of the wall holes did not support her hammer-for-wiring explanation. The court then concluded Family Code section 3044 required awarding Mother sole legal and physical custody, modifying the pre-existing 50/50 order to give Father unsupervised visitation from Sunday morning to Tuesday morning. Father petitioned for reconsideration on April 18, 2025, and appealed on May 22, 2025.
The Court’s Holding
The Court of Appeal affirmed the DVRO. Reviewing the order for abuse of discretion and the legal standard de novo, the court held that abuse under the Domestic Violence Protection Act includes disturbing the peace of the other party—conduct that, under the totality of the circumstances, destroys the other party's mental or emotional calm, including coercive control under section 6320(c). Mother's testimony, text messages, and photographs were substantial evidence of a pattern of force, threats, coercion, harassment, and verbal and physical abuse, and the trial court reasonably disbelieved Father and PGM, whose account of the wall holes was contradicted by the photographic evidence.
The court reversed the custody modification. Section 3044's rebuttable presumption against awarding custody to a parent who perpetrated domestic violence arises only when a party seeks custody or modification of custody. Here neither party requested a change, Mother did not list N.H. as a protected party, no DV-105 form was filed, and the trial court itself told Father that custody was not at issue. Following In re Marriage of Willis & Costa-Willis, the appellate court held the presumption never arose; Father had no notice that custody would be modified and no opportunity to rebut the presumption, so the modification violated his due process rights under In re Jesusa V. and Boddie. The pre-existing joint custody order remains in effect.
Key Takeaways
- Substantial evidence—Mother's testimony, text messages, and photographs—supported the DVRO based on abuse that disturbed her peace under the Domestic Violence Protection Act.
- Abuse under the DVPA includes nonviolent conduct such as disturbing the peace of the other party, meaning conduct that destroys the other party's mental or emotional calm under the totality of the circumstances, including coercive control.
- The Family Code section 3044 presumption against custody for a parent who perpetrated domestic violence does not apply when neither party requests custody or modification of an existing custody order.
- Modifying child custody without notice that custody is at issue and without an opportunity to be heard violates due process.
- The Court of Appeal affirmed the DVRO but reversed the custody modification, leaving the pre-existing joint custody order in effect and ordering each party to bear its own costs on appeal.
Why It Matters
This unpublished decision underscores that the section 3044 presumption is not self-executing: a DVRO finding does not by itself authorize a custody change absent a request, the required forms, notice, and an opportunity to rebut the presumption. Trial courts cannot unilaterally modify custody during a DVRO hearing when neither party sought that relief.
It also confirms that the DVPA's disturbing-the-peace standard reaches coercive, nonviolent conduct, and that trial court credibility findings supported by photographs and documents will be upheld on appeal under the substantial evidence standard.