A Reasonable Fear Of Future Abuse Is Key in Determining Whether to Grant a Renewal of a Domestic Violence Restraining Order
Maria de la Luz Perez (“Appellant”) filed a request for a domestic violence restraining order (“DVRO”) against Job Francisco Torres-Hernandez (“Respondent”). In her request for the DVRO, Appellant claimed that Respondent was going to kill her and take her children away. The family law court ultimately issued a three-year restraining order. Before the order expired, Appellant petitioned for a permanent renewal of the restraining order. Appellant alleged that Respondent had repeatedly violated the order. The family law court ultimately concluded that there was no basis to extend the order on a permanent basis, as there was insufficient evidence as to a reasonable belief of continued abuse. Appellant’s family law attorney then filed a timely appeal.
In reviewing the denial of a request for a renewal of a DVRO, the Court of Appeal noted that it must determine whether the family law court applied the correct legal standard. Family Code section 6345 “makes it unnecessary for the protected party to introduce or the court to consider actual acts of abuse the restrained party committed after the original order went into effect.” “A family law court is vested with discretion to issue a protective order under the Domestic Violence Prevention Act (“DVPA”) simply on the basis of an affidavit showing past abuse.” Here, Appellant’s testimony established a reasonable apprehension of future abuse. Respondent had continued to contact and threaten her even with the DVRO in place. While he did not physically abuse Appellant after the order was issued, he had physically abused their children and Appellant’s son. This abuse was relevant to the continuance of the order.
Furthermore, the Court of Appeal found that the family law court improperly concluded that evidence of abuse of the couple’s children was irrelevant. The Court of Appeal determined that this abuse should have been considered in determining whether to renew the order. Under the DVPA, abuse is not limited to the protected party seeking the order. The definition of abuse includes placing “a person in reasonable apprehension of imminent serious bodily injury to that person or to another.” Child abuse, with no abuse of the protected party, can support the issuance of a DVRO. Here, Appellant’s family law attorney presented evidence that since the DVRO was issued, while she had not been physically abused by Respondent, he had physically abused their children. There was also evidence that Respondent taunted Appellant by sending her texts after the child abuse charges against him were dismissed, which caused Appellant “a lot of fear.” Family Code section 6320 describes enjoinable behavior as including “disturbing the peace of the other party,” which means “conduct that destroys the mental or emotional calm of the other party.” The abuse of their children destroyed Appellant’s emotional calm and made her fear for her safety and the safety of her children. This was evidence the family law court should have considered in ruling on the renewal of the DVRO.
Based on the foregoing, the Court of Appeal reversed the order denying Appellant’s family law attorney’s request for a permanent renewal of the DVRO.
Perez v. Torres-Hernandez (2016) 1 Cal. App. 5th 389