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“Badgering” is Legally Insufficient, by Itself, to Support the Issuance of a Restraining Order Under the Domestic Violence Prevention Act

S.M. (“Father”) and E.P. (“Mother”) had an on-again, off-again relationship for five years. Late in the relationship, Mother became pregnant. Prior to the child’s birth, Father’s family law lawyer filed an action to establish paternity, and to prevent Mother from moving to Iowa before giving birth. Father’s requests were denied. In August 2008, Mother gave birth to the child in Iowa. In November 2008, Mother returned to California and moved in with Father. In April 2009, Mother told Father that she would be traveling to Iowa, and that she planned to take the child with her. She also told Father that she wanted to eventually move back to Iowa. On April 23, 2009, Father and Mother had an argument because Father was upset that she was taking the child to Iowa. Mother claimed Father woke her up, tore the covers off her bed, and told her that he was going to kill her. This incident led Mother to call the police. The police arrested Father when he said that he did not want Mother to take the child out of the house. Later that day, Mother and child flew to Iowa. Mother then sought a restraining order against Father based on the incident that had occurred. The family law court granted the restraining order. Father’s family law attorney then filed a notice of appeal.

Under the Domestic Violence Prevention Act (“DVPA”), a family law court may issue a restraining order for domestic violence if there is a showing of “reasonable proof of a past act or acts of abuse.” The DVPA defines domestic violence as “abuse” perpetrated against enumerated individuals, including a former spouse or cohabitant. Under the DVPA, the definition of “abuse” includes placing a person in “reasonable apprehension of imminent serious bodily injury to that person or to another.”

The Court of Appeal found that Father’s “badgering” was legally insufficient to support the issuance of the restraining order. Furthermore, the Court of Appeal found that Father’s “agitated” behavior did not support a finding by the family law court that Father engaged in “abuse,” since the word “agitated” was not meant to suggest that Father was acting in a violent or rude manner, but, rather, that Father’s behavior demonstrated that he was concerned about losing contact with his child, a concern the court found to be commendable. Moreover, the Court of Appeal did not find that Mother was in “reasonable apprehension of imminent serious bodily injury,” as conduct that involved pulling off Mother’s covers and not giving her permission to leave the house with their child could not be considered conduct that placed her in “reasonable apprehension of imminent serious bodily injury” under the circumstances. Because there was no finding that Father’s conduct constituted “abuse” under the DVPA, the restraining order issued by the family law court was reversed.

S.M. v. E.P. (2010) 184 Cal. App. 4th 1249