Overview of Domestic Violence
Domestic violence is abuse or threats of abuse between persons who have been in an intimate relationship or people that are related by blood. The abuse can be physical, emotional and/or psychological. The abuse can be of a sexual nature and can be a result of hurting someone or trying to hurt someone whether intentionally or recklessly. It can take many forms including controlling freedom of access, throwing items, kicking, hitting, shoving or pulling hair. Divorce courts may issue orders restraining this and other types of conduct.
Domestic violence allegations are extremely serious. They can be filed in divorce court as standalone cases or as part of a divorce proceeding. If the divorce court finds that domestic violence has occurred, there may be very severe consequences. The issuance of a protective order will be registered in the California Law Enforcement Telecommunications System (CLETS). CLETS can be accessed by law enforcement and criminal justice agencies. If the perpetrator has contact with law enforcement, they will run his or her name through the CLETS system, and discover any protective order.
There may be other detrimental effects on custody, child support, spousal support and kick-out orders from the residence. Examples include:
- A perpetrator of domestic violence may be prevented from receiving spousal support;
- A perpetrator parent must overcome the presumption that it is not in a child's best interests for the perpetrator parent to have joint custody with the other parent;
- A perpetrator may be required to attend a 52-week batter's program;
- Restrictions on ownership and possession of firearms;
- Payment of restitution; and/or
- Payment of attorney fees;
A protective order may cover family or members of the protected party’s household. The protective order will require that the restrained party stay a prescribed distance away from the protected party’s residence, work or school. Additionally, the restrained party may not have any personal, electronic or third-party contact with the protected party or parties.
A permanent restraining order may be initially granted for up to five (5) years. An extension can subsequently be granted extending the restraining order for another five (5) years or a lifetime.
The definition of domestic violence or abuse is more expansive in family law than it is in criminal law. Grounds for a protective order include physical acts, destruction of property, harassing statements, annoying phone calls, disturbing the peace and credibly impersonating or falsely impersonating another person. There is no requirement of physical injury or assault.
The court may look at past acts of abuse and shall consider the totality of circumstances when determining whether to grant or deny a protective order request.
Disturbing The Peace
The plain meaning of the phrase “disturbing the peace of the other party” may be understood to mean conduct that destroys the mental or emotional calm of the other party (Burquet v. Brumbaugh).
Evidence of mental abuse may be the basis for a protective order under the Domestic Violence Protective Act (“D.V.P.A.”). Mental abuse is relevant evidence in a D.V.P.A. proceeding. Controlling behavior and threats may be sufficient evidence to demonstrate the destruction of a party’s mental and emotional peace. (Rodriguez v. Menjvar).
The Appellate Court found that badgering may not be legally sufficient to justify a restraining order under the Domestic Violence Protective Ac. (S.M. v. E.P.).
The Domestic Violence Protective Act was enacted to also protect Domestic Partners from abusive conduct. (Altafulla v. Ervin).
Disclosing Content of Text/Emails
Accessing, reading and publicly disclosing the content of a text or e-mail of a party may fall into the definition of abuse under the Domestical Violence Protect Act, may disturb the peace and mental or emotional calm so as to constitute abuse. (IRMO Nadkarni)
The Definition of Abuse
The definition of “abuse” under the Domestic Violence Protective Act is not limited to situations when physical injury or assault have been inflicted (IRMO Evilsizor & Sweeney).
Intention of Reckless Behavior
Intentional or reckless behavior that causes bodily injury or reasonable fear of imminent serious bodily injury or that disturbs the peace of the other party constitutes abuse under the Domestic Violence Protective Act (Nevarez v. Tonna).
Fake Suicide Video
An appellate court found that purposefully sending a video of a staged fake suicide to a spouse was conduct that disturbed the peace of the other party and was abuse under the Domestic Violence Protective Act (Hogue v. Hogue).
Past Acts and Current Fear
Proof of a past act or acts of domestic violence together with credible evidence of the protected party’s continued fear may warrant the issuance of a restraining order under the Domestic Violence Protective Act (IRMO Fregoso & Hernandez).
Hearing is Generally Required
Credible evidence of a party intentionally or recklessly causing or attempting to cause serious bodily injury constitutes abuse under the Domestic Violence Protective Act. A court may not dismiss a request for Domestic Violence Protective Act restraining orders without a hearing if the pleadings are factually adequate relative to the abusive acts (Nakamura v. Parker).
Safety Must Be Protected
Under the Domestic Violence Protective Act, a restraining order is justified if the denial of granting an order would jeopardize the safety of the party requesting the protective order (In re N.L.).
Mutual Restraining Orders and Findings
For a protective order to be issued pursuant to the Domestic Violence Protective Act, the family law court must issue the required findings of fact. This requirement also applied to mutual restraining orders (Monterroso v. Moran).
Each party must request a Restraining Order for the granting of mutual restraining orders. The family law court does not have jurisdiction to issue restraining orders against each party unless each party has requested such relief in their respective pleadings (Isidora M. v. Silvino M.).
Aggressor v. Self-Defense
In order for a family law court to have the jurisdiction to issue a protective order under the Domestic Violence Protective Act, the restrained party must have acted as the aggressor and must not have simply acted in self-defense (J.J. v. M.F.).
Children As Protected Party
In order for a restraining order under the Domestic Violence Protective Act that names minor children as protected parties, there must be evidence supporting the allegation that the children’s safety was at issue (IRMO C.Q.).
Abuse By Stepfather Against Father Outside the Presence of the Child
A Stepfathers abuse of the father of a child, outside the presence of the child did not constitute abuse under the Domestic Violence Protective Act (Hauck v. Riehl).
A family law court order that annuls a father’s visitation or child custody must include a finding that such an order would be in the child’s best interests (Celia S. v. Hugo It.).
The court must apply the rebuttable presumption that annulling visitation and or child custody to a parent who has committed abuse under the D.V.P.A is detrimental to the best interests of the child (IRMO Fajota & Christina L. v. Chauncey B.).
Life of Related Orders
Court orders relative to child support and child custody survive the termination of a Domestic Violence Restraining Order’s termination (Moore v. Bedard).
Transfer of Title Orders
The family law court has the jurisdiction to approve a stipulation that transfers title of assets from one party to the other (Rayan v. Dykeman).
The court may order one party to pay the attorneys fees of the other in a Domestic Violence Protective Act action. On appeal, the family law courts order will not be reversed unless the court has abused its discretion and the order “shocks the conscious” because of the amount of the award (Loeffler v. Medina).
The failure to ask for an attorney fee award in a Domestic Violence Protective Act matter does not prevent a party from seeking a fee award after the Domestic Violence Protective Act order is issued.
Renewal of Restraining Orders
Courts may renew a domestic violence protection order restraining order for five years or permanently.
Continued abuse is relevant to the renewal of a Domestic Violence Protective Act restraining order (Perez v. Torres-Hernandez). The renewal of a restraining order must be based on the protected party’s reasonable apprehension of future abuse taking into consideration any change in circumstances (Ritchie v. Konrad and Cueto v. Dozier). Reasonable apprehension shall be objectively analyzed. The burdens on the restrained party may or may not be relevant.
A fear of physical abuse by the protected party is not a requirement to renew a Domestic Violence Protective Act restraining order (Eneaji v. Ubboe).
An appeal of a family law court protective order under the Domestic Violence Protective Act, must be filed within 60 days after entry of the Judgment or within 180 days if service was not proper (IRMO Lin).