In re Marriage of D.S. & A.S. (2023) 87 Cal.App.5th 926

A.S. filed a request for a DVRO against D.S. stating she and the minor children had suffered abuse. Instead of submitting a written declaration describing the abuse, A.S. attached several typed pages which appeared to be a transcript of interactions between A.S., D.S., and the children. A.S. also alleged D.S. had threatened to use a gun on himself twice in the past.

A.S. later filed an amended request for a DVRO. A.S. alleged D.S. owned over 10 registered and unregistered guns, D.S. drive while intoxicated with the children in the car, and she had videos of D.S. verbally and emotionally abusing the children and A.S. D.S. filed a response, denying the abuse.

Both A.S. and D.S. represented themselves at the hearing. The trial court did not swear the parties as witnesses nor take testimony from them. It also did not address objections, such as hearsay objections, raised in D.S.’s response to A.S.’s DVRO request nor make any inquiries of D.S. regarding A.S.’s allegations.

The trial court issued a 3-year DVRO against D.S. D.S. appealed, arguing that the trial court denied him due process by issuing a DVRO based solely on declarations without receiving live testimony.

The Court of Appeal found that, although a court may issue a restraining order based solely on the declaration of the parties, due process requires that litigants have the right to be heard in a meaningful manner.  Here, the trial court did not provide D.S. meaningful opportunity to be heard. The trial court failed to inquire into the reasons D.S. objected to A.S.’s DVRO request, received no testimony, made no effort to question the parties to determine their credibility, and did not allow the parties to cross-examine disputed issues.

The Court of Appeal further reiterated that judges must take a more active role in developing the facts of a DVRO case when litigants are self-represented.