Dennis Temko Secures Published Appellate Reversal Enforcing Domestic Violence Protections in Child Custody Cases.  

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California Court of Appeal holds that a custody ruling involving one child does not resolve domestic violence protections for a different child.

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SAN DIEGO, October 19, 2026 — California family law appellate attorney Dennis Temko represented the mother in a successful appeal challenging a custody order entered without applying California’s mandatory domestic violence presumption. The published decision, In re Marriage of Jessica and Sammer Z. (2026) 123 Cal.App.5th 1, clarifies that overcoming the presumption in a proceeding involving one child does not establish that a parent has overcome it for another.

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California Family Code section 3044 creates a rebuttable presumption that awarding sole or joint custody to a parent who committed domestic violence within the previous five years would harm the child’s best interests. The statute places the burden on that parent to overcome the presumption and requires specific findings before a court determines it has been rebutted.

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In this case, the trial court awarded the father joint legal and primary physical custody after concluding it was bound by a ruling in a separate proceeding involving his younger child and a different mother. That ruling followed a finding that the father had committed domestic violence against his new partner.

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The Fourth District Court of Appeal, Division One, reversed the custody and visitation portions of the challenged order. It held that whether a parent has overcome the presumption depends on the particular child’s best interests. The mother was also entitled to litigate that question because she was neither a party to the separate proceeding nor legally represented by the other mother’s interests.

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“Each child is entitled to the protection California law provides,” Temko said. “A ruling concerning one child cannot substitute for the analysis required to determine another child’s safety and best interests.”

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The appellate court also rejected the argument that the error was harmless. It explained that the trial court had omitted required statutory findings and relied extensively on the preference for frequent and continuing parental contact—a consideration section 3044 expressly prohibits courts from using to rebut the presumption.

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The court directed further proceedings to apply section 3044 and issue a new custody order. It also denied the father’s motion to dismiss the appeal under the disentitlement doctrine, emphasizing the child’s welfare among its reasons for allowing appellate review.

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“Appellate advocacy requires showing both the legal error and why it mattered,” Temko said. “Here, applying the wrong framework changed the burden of proof, the evidence considered, and the factors used to decide custody.”

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About Dennis Temko

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Dennis Temko is a San Diego attorney and Certified Family Law Specialist whose practice focuses on California family law appeals and writ proceedings. Since his admission to the California Bar in 2013, most of his practice has been devoted to appellate matters involving custody, domestic violence restraining orders, support, and property division. His published cases address issues ranging from custody and parental rights to military retirement and spousal support.