Evidence Must be Sufficient to Support the Issuance of a Restraining Order Under the Domestic Violence Prevention Act Naming Minor Children as Protected Persons

In July 2012, Father and Mother were married and living together in Orange County with their three minor daughters and adult daughter. On July 11, 2012, Mother reported an incident of domestic violence perpetrated by Father on Mother. Mother claimed that after she told her three daughters to clean up their mess, Father began yelling at Mother, telling her that she could not discipline his daughters. Father then proceeded to grab boxes of glass figurines and throw them in front of Mother and one of their minor daughters. The other three daughters were in their bedrooms with the doors open. Father then struck Mother in the arm with a closed fist. The minor daughter moved in between Father and Mother and asked Father not to hit Mother. Father then left the home. Mother told a social worker that she and Father had separated two years before this incident because Father was in a relationship with another woman. Mother and Father continued to live together in Orange County despite the separation. Mother claimed that Father had been insulting her and arguing with her for the past two years. Mother stated that the incident was the second domestic violence incident between her and Father. The first incident involved Father striking Mother in the arm, resulting in a bruise.

As a result, Mother’s Orange County family law attorney requested in the family law court a permanent restraining order under the Domestic Violence Prevention Act against Father. Father objected to the restraining order, arguing there was no evidence supporting the inclusion of the children as protected persons because the children were not placed at risk. The juvenile court overruled Father’s objection and issued a permanent restraining order requiring Father to stay away from Mother, the three minor children, the children’s school or childcare, and the home where Mother and children live. On appeal to the Court of Appeal, Father’s Orange County family law attorney contended the evidence was insufficient and that there was no compelling reason to support the issuance of a restraining order naming the three minor children as protected persons.

The Orange County family law court had jurisdiction to issue an order “enjoining any person from molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning, … destroying the personal property, contacting, … or disturbing the peace of the child.” This subdivision also permitted the Orange County Superior Court to issue orders including the child’s parent as a person protected from the behaviors listed above, and excluding the restrained person from the child’s home. Issuance of a restraining order does not require “evidence that the restrained person has previously molested, attacked, struck, sexually assaulted, stalked, or battered the child,” nor does it require evidence of a reasonable apprehension of future abuse.

The Court of Appeal ultimately found that the Orange County family law court had erred in listing Father and Mother’s three minor daughters as protected persons in the Domestic Violence Prevention Act restraining order, as there was no evidence indicating the children’s safety would be in jeopardy absent their inclusion in the restraining order. The evidence showed that the children all wanted to have visits with their father, and that they were not afraid of him. Although one child was visibly shaken by the incident on July 11, 2012, none of the children had anything negative to say against their father. Furthermore, there were no reports that Father engaged in any violent or otherwise inappropriate conduct since the incident on July 11, 2012. Thus, the Court of Appeal agreed with father’s Orange County family law attorney ordered the Orange County family law court to modify the Domestic Violence Prevention Act restraining order by deleting the names of the three children from the list of protected persons. In all other respects, the restraining order was affirmed.

In re C.Q. (2013) 219 Cal. App. 4th 355