Domestic Violence

Domestic violence actions may be filed in the family law court and impact other parts of a case, including child custody, child support, spousal support, and attorneys fees. A finding of domestic violence does not necessarily require a physical touching and there is a lower threshold for finding domestic violence in family court than in criminal courts.

In family law, domestic violence is the actual, or threatened abuse between persons who have been in an intimate relationship, or people who 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. Family law courts may issue orders restraining this, and other types of conduct.

Domestic violence allegations are extremely serious, and can be filed in family law 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 their name through the CLETS system and discover any protective order.

A finding of domestic violence may have detrimental effects on child custody, child support, spousal support, and residence kick-out orders. Examples include:

1. Potential loss of rights to receive spousal support;
2. Potential loss of custodial rights;
3. Potential requirement to attend a 52-week batter’s program;
4. Restrictions on ownership and possession of firearms;
5. Payment of restitution; and
6. Payment of attorney fees.

A restraining order may cover an individual who has been in an intimate relationship, a family member, 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, and 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, and an extension can be granted, extending the restraining order for another five (5) years. The court may order that the restraining order continues for the perpetrator’s lifetime.

The definition of domestic violence or abuse is more encompassing in family law than it is in criminal law. In family law, the grounds for a protective order include physical acts, destruction of property, harassing statements, annoying phone calls, disturbing the peace and credibly or falsely impersonating another person. There is no requirement of physical injury or assault.

A family law court may look at past acts of abuse and will consider the totality of circumstances when determining whether to grant or deny a restraining order.

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, Phillips v. Campbell and Qing Hui Gou v. Bi Guang Xino).

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).

Conduct that disturbs the peace of another or that causes anoher to be in reasonable fear of imminent serious bodily injury will justify the granting of a DVPA restraining order (Qing Hui Gou v. Bi Guang Xino and Perez v. Torres-Hernandez).

An Appellate Court found that badgering may not be legally sufficient to justify a restraining order under the Domestic Violence Protective Act. (S.M. v. E.P.).

The Domestic Violence Protective Act was enacted to also protect Domestic Partners from abuse. (Altafulla v. Ervin).

Accessing, reading, and publicly disclosing the content of a text or e-mail of a party may be considered abuse under the Domestic Violence Protect Act and may disturb the peace and mental or emotional calm, constituting abuse. (IRMO Nadkarni)

The definition of “abuse,” under the Domestic Violence Protective Act, is not limited to situations when a party inflicts physical injury or assault or another (IRMO Evilsizor & Sweeney).

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).

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).

A Stepfather’s 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). That would justify classifying the child as a protected party.

Credible evidence of a party intentionally or recklessly causing or attempting to cause serious bodily injury, whether intentional or not, constitutes abuse under the Domestic Violence Protective Act. A family law 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).

Conclusion accusations of domestic violence do not constitute sufficient evidence to support a finding of domestic violence (A.G. v. C.S.).

Under the Domestic Violence Protective Act, a restraining order is justified if the denial of an order would jeopardize the safety of the requesting party (In re N.L.).

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 a mutual restraining order. A 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.).

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 not in self-defense (J.J. v. M.F. and IRMO G).

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 risk (IRMO C.Q.).

Parties are not “cohabitants,” and thus not protected parties, if they do not regularly reside in the same household (O’kane v. Irvine).

A family law court order that annuls a father’s visitation or child custody must find that such an order is in the child’s best interests (Celia S. v. Hugo It.).

The family law court must apply the rebuttable presumption that terminating 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.).

Court orders relative to child support and child custody survive the termination of a Domestic Violence Restraining Order’s termination (Moore v. Bedard).

The family law court may order one party to pay the attorney’s fees of the other in a Domestic Violence Protective Act action. On appeal, the family law court’s 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’s 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.

Family law courts may renew a domestic violence protection order restraining order for five years, or make it a permanent order.

Continued abuse is relevant to the renewal of a Domestic Violence Protective Act restraining order (Perez v. Torres-Hernandez and Ritchie v. Konrad). The renewal of a restraining order must be based on the protected party’s likely 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).

The family court may renew a restraining order issued by the juvenile court (Garcia v. Escobar and Priscilla v. Leonardo G.).

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).

Abuse, or threats of abuse between persons who have been in an intimate relationship, or people that are related by blood, may be domestic violence. Abuse is widely defined, and may be sexual, physical, and/or psychological. It may include blocking someone’s path, holding them down, shoving them, throwing an item, or pulling hair. Hurting someone, whether purposefully or recklessly, may be domestic violence.

Perpetrators of domestic violence may be found to be an unfit parent, and the issuance of a protective order into the California Law Enforcement Telecommunications System (CLETS). If the perpetrator has contact with a police officer, they will see the protective order filed in the CLETS system.

A finding of domestic violence may be significant regarding to child custody, child support, and kick-out orders from the residence. Examples may include:

1. A perpetrator parent must overcome the presumption that it is not in a child’s best interests for them to have joint custody with the other parent;
2. A perpetrator may be required to attend a 52-week batter’s program;
3. A perpetrator will be regarding ownership and possession of firearms;
4. A perpetrator is subject to payment of restitution; and/or
5. The perpetrator may be ordered to pay the victim’s attorney’s fees.

A restraining order may protect family or members of the protected party’s household.

A permanent restraining order, issued by the family law court, may be granted for up to five (5) years, and be extended for a lifetime.

The family law 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.

Abuse, or threats of abuse between persons who have been in an intimate relationship, or people that are related by blood, may be domestic violence. Abuse is widely defined, and may be sexual, physical, and/or psychological. It may include blocking someone’s path, holding them down, shoving them, throwing an item, or pulling hair. Hurting someone, whether purposefully or recklessly, may be domestic violence.

Perpetrators of domestic violence may be found to be an unfit parent, and the issuance of a protective order into the California Law Enforcement Telecommunications System (CLETS). If the perpetrator has contact with a police officer, they will see the protective order filed in the CLETS system.

A finding of domestic violence may be significant regarding to child custody, child support, and kick-out orders from the residence. Examples may include:

1. A perpetrator parent must overcome the presumption that it is not in a child’s best interests for them to have joint custody with the other parent;
2. A perpetrator may be required to attend a 52-week batter’s program;
3. A perpetrator will be regarding ownership and possession of firearms;
4. A perpetrator is subject to payment of restitution; and/or
5. The perpetrator may be ordered to pay the victim’s attorney’s fees.

A restraining order may protect family or members of the protected party’s household.

A permanent restraining order, issued by the family law court, may be granted for up to five (5) years, and be extended for a lifetime.

The family law 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.