A Stepfather’s Acts of Abuse Against a Child’s Father Outside of the Child’s Presence Did Not Amount to Abuse Under the Domestic Violence Prevention Act

A five-year old child lived with her mother and stepfather. The child’s father had visitation rights. After a confrontation between the child’s father and the stepfather while the father was picking up the child for a visit, the father sought an injunction against the stepfather pursuant to the Domestic Violence Prevention Act. The family law court granted the father’s request and issued a permanent injunction against the stepfather, which was to remain in effect for five years. The stepfather then timely filed a notice of appeal.

On appeal, the stepfather’s family law attorney maintained that the family law court did not have jurisdiction to issue the requested injunction, since the father was not a protected “person” listed under California Family Code section 6211. California Family Code section 6301 provides that a protective order may be granted under the Domestic Violence Prevention Act “to any person described in Section 6211,” which includes “a child of a party.” The father’s family law attorney argued that section 6211(e) essentially stated “that domestic violence is abuse perpetuated against a child of a party.” The father’s family law lawyer alleged in his moving papers and in open court that he was not just requesting protection under the Domestic Violence Prevention Act for himself, but also for his child. Thus, the family law court grounded its decision to issue the restraining order on this notion of protection of the child from abuse, even though no evidence of the stepfather’s abuse of the child was ever presented to the family law court.

The family law court correctly noted that if a minor child is “abused” as defined in California Family Code section 6203, he or she is a protected person pursuant to section 6211(e), and therefore authorized to bring an action under the Domestic Violence Prevention Act. However, in the present case, the father’s family law attorney did not bring the action on behalf of the minor child. In addition, he was not a protected “person” under section 6211, and did not make any allegations in his petition of any “abuse” that the stepfather committed against the minor child. The only abuse alleged and testified to by father was abuse directed at him by the stepfather while the child was not present. Even if the father brought the petition on behalf of the child, the family law court would only be authorized to issue an order restraining the stepfather’s interactions with the child, and not with the father. Based on the foregoing, the Court of Appeal held that a stepfather’s acts of abuse against a child’s father outside of the child’s presence were insufficient to allow the father to seek a Domestic Violence Prevention Act restraining order on the child’s behalf. Because the father was not a protected “person” under the Domestic Violence Prevention Act, the family law court was not authorized to grant him the protective order. Hence, the order was reversed and the case was remanded to family law court, which was directed to dissolve the Domestic Violence Prevention Act injunction and dismiss the case.

Hauck v. Riehl (2014) 224 Cal. App. 4th 695