Jackson Lucky
Arbitrator, mediator and private judge
JAMS
Employment, medical malpractice, personal injury, probate, commercial, family law
Family law practitioners use stipulations to streamline
custody proceedings. When both parents agree--even in domestic violence
cases--the instinct is to write it up, hand it to the court and move on. That
instinct is understandable. Dockets are overburdened. Litigation is expensive.
A stipulation on custody seems to serve everyone.
But In re Marriage of J.G.
& K.G. (2025) 110 Cal.App.5th 1214 is the appellate courts' latest
reminder what custody stipulations can and cannot do. The issue is worth
stating plainly: Parties can stipulate to facts; they cannot stipulate to
findings. In a California Family Code § 3044 case, that distinction is
everything.
What J.G. held--and why
After a bench trial, the court
found that the father had committed domestic violence against the mother. The
trial court then approved the parties' joint-custody agreement. The judge
remarked that "the parties agreed to joint legal custody, despite the § 3044
presumption." Nobody objected, so the trial court did not make written findings
or explain what rebutted the presumption.
The Court of Appeal reversed. It
held that § 3044 "is mandatory and the trial court has no discretion in
deciding whether to apply it." The parties' agreement is not a substitute for
the court's duty. Section 3044 does not speak to what the parents want. It
speaks to what is safe for the child.
J.G. follows a consistent line: In
re Marriage of Fajota (2014) 230 Cal.App.4th
1487; Celia S. v. Hugo H. (2016) 3 Cal.App.5th 655; Jaime G. v. H.L.
(2018) 25 Cal.App.5th 794; C.C. v. D.V. (2024) 105 Cal.App.5th 101. In
each case, the Court of Appeal reversed a trial court for taking a stipulated
agreement instead of making § 3044 findings.
Why the duty cannot be delegated
The California Legislature found
that domestic violence harms children. Because of that, awarding custody to a
perpetrator is presumptively detrimental. That's why the § 3044 presumption
applies, regardless of what the adults prefer. The seven rebuttal factors in §
3044(b) define what rehabilitation looks like: completion of a batterer's
intervention program (BIP), substance abuse treatment, compliance with orders,
absence of further violence, etc.
The law requires courts to make
on-the-record findings for the relevant 3044 factors because without that
record, the presumption has no teeth. Without that record, courts are just
rubber-stamping the parties' wishes. Courts cannot allow parents to bargain
away the state's interest in protecting children.
When parents file requests for
domestic violence restraining orders (DVROs) or custody orders, they invoke the
court's jurisdiction (and obligation) to determine children's best interests.
Courts become the guardians of children's best interests, even (and especially)
when neither parent chooses to protect that child.
That is why a stipulated order
cannot substitute for a finding. The child did not sign the agreement. The
child cannot consent, object or appeal. The court's § 3044 analysis is the way
the system ensures that someone asks the question the statute requires: Is this
arrangement safe for this child?
The principle is not unique to §
3044
This principle--that parties cannot
stipulate around a court's mandatory findings--is not new. In Pham v. Nguyen
(1997) 54 Cal.App.4th 11, both parties stipulated to continue trial. The trial
court denied the continuance, despite a statute that appeared to require it.
The Court of Appeal affirmed the denial, explaining that courts must evaluate
continuance requests on their merits regardless of the parties' agreement. If
stipulations cannot move hearing dates without independent good cause findings,
they certainly cannot satisfy the court's obligation to children before
awarding custody to domestic violence perpetrators.
Stipulations are not useless in §
3044 proceedings, but practitioners must know what stipulations do.
Stipulations are conclusive
judicial admissions of facts. The California Supreme Court held in Palmer v.
City of Long Beach (1948) 33 Cal.2d 134 that a stipulation "is conclusive
upon the parties, and the truth of the facts contained therein cannot be
contradicted." California Code of Civil Procedure (CCP) § 2033.410 and Judicial
Council of California Civil Jury Instructions (CACI) No. 5002 reflect the same
rule.
A carefully drafted stipulation of
the facts underlying each § 3044(b) factor--e.g., BIP completion, absence of
subsequent domestic violence, restraining order compliance--conclusively
establishes those facts. If both parties stipulate that a parent completed a
52-week BIP, the court does not need further evidence.
But a court's best interest
finding is independent of the parties' litigation choices. Neither parent can
waive the court's obligation to protect children. While the court must accept
stipulated facts as true, the court must still decide whether those facts
legally rebut the presumption. That is the line. The court's obligation under §
3044(f) is to find, in writing or on the record, that the presumption has been
rebutted. The parties' stipulation cannot perform that judicial act.
Practitioners should heed this
consistent message from the Courts of Appeal. Stipulations, while efficient and
convenient, can streamline factual findings. They can guide the court toward the
result the parties want. But that's it.
Use stipulations for what they do
well: resolving factual disputes. Stipulate to completed programs, clean
records and documented compliance (with documentation attached), and let the
court make its findings on a clean record.
But remember, the court is not
limited to the record the parties present. Even when both sides have stipulated
to the underlying facts, the court has authority to order additional
proceedings--a custody evaluation, minor's counsel under § 3150--to make an informed
best-interest determination. Parties who stipulate to streamline proceedings
cannot prevent the court from doing its job.
The line of cases from Fajota through J.G. is not proof that
appellate courts are being difficult. It is appellate courts enforcing what the
California Legislature demanded: A court--not the parties--must determine whether
a domestic violence perpetrator should have custody of a child.
Parties
have authority over facts. Courts have authority over findings. Practitioners
serve their clients--and the best interests of children--by understanding the
difference.
Disclaimer: The content is
intended for general informational purposes only and should not be construed as
legal advice. If you require legal or professional advice, please contact an
attorney.