Announcements

The case of State v. Sanchez  is significant for survivors because it acknowledges coercive control within a criminal context. It also advances public policy to protect survivors in both criminal and civil courts by recognizing that witness tampering is a form of control. This case does the following:

1. Expands domestic violence protections for survivors by categorizing witness tampering as a crime eligible for a domestic violence designation.
2. Links witness tampering closely to coercive and controlling behavior, which is recognized as a form of domestic violence under RCW 7.105.010.

Congratulations to WA summer law clerks Jerrald Callanta and James Taylor for their work on this matter. And, thank you to the 7 domestic violence organizations who joined our publication request.

Published Opinion

FVAP successfully requested publication of this case that will provide guidance throughout the state to trial courts deciding whether to remove children from the survivor parent solely because of the abuse endured. In re B.H. establishes that the mere fact a DV survivor parent who sought out (and was granted) a DV restraining order (DVRO) in the past does not mean that they or their children are being exposed to ongoing DV. The trial court in this case was wrong to find B.H. had not protected her kids from her abuser simply because she obtained a DVRO against him following a recent incident of abuse. 

Several published appellate cases have found that DV in the home supports a finding of dependency jurisdiction and removal of children from a DV survivor’s custody on the theory that they “failed to protect” the children from being exposed to DV. In re B.H. now gives critical guidance to trial courts on the “failure to protect” standard in dependency proceedings, clarifying a survivor’s continued contact with their abuser to co-parent after an incident of DV does not constitute a failure to protect provided there is no further abuse. This decision counters other current case law suggesting that separated parents alone does not eliminate the risk of DV, especially when ongoing interactions continue because of their children. (In re L.O. (2021) 67 Cal. App. 5th 227, 240). Survivors are often blamed for their abuse, and held to unreasonable standards for what they must do to keep their children safe., In re B.H. will help survivors argue that they can and should be allowed to safely parent their children.

Congratulations to FVAP attorneys Jennafer Dorfman Wagner, Arati Vasan, and FVAP law clerk, Alisa McKissick for championing this publication request. FVAP would also like to thank the 17 domestic violence organizations, legal aid organizations, public interest organizations, and academics who joined our publication request.

Published

       FVAP was successful in requesting publication of In re A.P. et al. which establishes that violations of a temporary restraining order is abuse when requesting a juvenile court domestic violence restraining order, just as it is when requesting a family law domestic violence restraining order. 

• Acts that violate a temporary restraining order (“TRO”) are considered abuse under Family Code section 6203, subdivision (a)(4). This principle was affirmed in the case N.T. v. H.T. and is crucial in Section 213.5 proceedings.
• Physical Separation of the Parties Does Not Justify Denying a Restraining Order: The court in In re A.P. emphasized that physical separation of parties does not justify denying a restraining order. This case sets a precedent that protection should not be substituted by physical distance. 
• Non-CLETS (not registered with law enforcement) Stay Away Orders Are Inadequate: In re A.P. clarifies that non-CLETS stay-away orders are insufficient protection for domestic violence survivors. It provides valuable guidance on the importance of distinguishing between “stay-away” orders and Domestic Violence Restraining Orders (DVROs).

Our publication request was joined by 31 organizations and academics serving survivors, families, and children in Los Angeles County and beyond, including Bay Area Legal Aid; Calegislation; California Protective Parents Association; Center for Community Solutions; Child Abuse Forensic Institute; Coalition of California Welfare Rights Organizations; Community Beyond Violence; Community Legal Aid SoCal; Disability Rights Legal Center; Family Violence Law Center; Greater Bakersfield Legal Assistance; Harriett Buhai Center for Family Law; Inland Empire Latino Lawyers Association, Inc.; Lawyers’ Committee for Civil Rights of the San Francisco Bay Area; Legal Aid Foundation of Los Angeles; Legal Aid of Sonoma County; Los Angeles Center for Law and Justice; National Family Violence Law Center; Pro Bono Project of Silicon Valley; Project Sanctuary; Public Counsel; Public Interest Law Project; Public Law Center; Queen’s Bench Bar Association; Stanislaus Family Justice Center; Stopping Domestic Violence; Su Casa – Ending Domestic Violence; Women’s Center-High Desert, Inc.; Youth Law Center; YWCA Silicon Valley, and; Professor Margaret Drew.

Publication of Dependency Case (No. B327857)

         FVAP successfully requested publication of this matter. Thank you to the team at Gibson Dunn & Crutcher who review unpublished opinions daily to help FVAP identify cases that, if published, could advance survivor safety in the courts! We are also grateful to the 11 domestic violence, public interest, and legal aid organizations, who joined our request.

Robert requested a Domestic Violence Restraining Order (DVRO) against his spouse Susan towards the end of their divorce. Susan tried to dismiss Robert’s request early using the anti-SLAPP law, claiming the emails she sent were related to a potential lawsuit and not evidence of abuse for a DVRO. The trial court allowed Robert’s DVRO request to proceed. Susan appealed, but the Court of Appeal upheld the trial court’s decision, stating that the anti-SLAPP law and litigation privilege could not prevent the DVRO request. The Court found that Robert’s request presented enough evidence of abuse for a DVRO, including unwanted contact, harassment, and disturbing Robert’s peace.

This case has a few holdings that are quite important:  

1. Survivors don’t have to ask the person who is being abusive to stop the abuse before they can get a DVRO
2. Behavior that seems like a “mere annoyance” when it is considered in isolation may actually be abuse when the parties’ history is considered
3. Any type of abuse –such as unwanted contacts, harassment, or disturbing the peace–can be enough for a DVRO, even if only one form of abuse was used against the survivor
4. Abuse is abuse, even without threats or violence
5. Curcio v. Pels discussed in Section I(B)in, should be used in a very limited way, when trying to say conduct isn’t abuse
6. The anti-SLAPP law couldn’t prevent the DVRO request here because the few messages that involved litigation were sufficiently abusive, as a prima facie matter, so they were not covered by the law; and
7. The litigation privilege couldn’t be used to prevent the DVRO request here because many of the emails were not lawsuit-related and were sufficiently abusive, as a prima facie matter.

Published Opinion 

Celebrating a Collaborative Victory for Justice

We’re thrilled to announce that the Family Violence Appellate Project co-counseled with Bay Area Legal Aid (BayLegal) to challenge a dangerous trial court order for a young survivor of domestic violence, resulting in a decision from the Court of Appeal agreeing the trial court erred and affirming the law designed to protect survivors

“When the trial court gets the law wrong, survivors like our client shouldn’t have to accept the harmful decisions that result. Survivors deserve the opportunity to challenge those harmful decisions,” says Elissa Gray, FVAP Equal Justice Works Fellow, Sponsored by Greenberg Traurig, LLP and The Clorox Company Foundation. “Together with BayLegal, we gave our client that chance to advocate in the Court of Appeal for the protection she was entitled to under law.”

“Individuals like our client cannot afford to wait for a hearing on a permanent restraining order, and too often have been forced to remain in a home shared with an abuser while the process plays out… Ensuring that the protection of a move-out order is available to the most at-risk survivors should be a basic measure of justice in family law cases.” 

Read more about the collaborative victory on BayLegal’s website.

FVAP is gratified that our client G.G. will get a new hearing to determine whether her restraining order should be renewed. The published opinion will also provide guidance to courts throughout California hearing cases like G.G.’s. The opinion has a lot of helpful guidance, including:

• Trial courts cannot narrowly focus on a lack of restraining order violations when determining whether to renew a restraining order.
• Courts instead must apply the factors outlined in Ritchie v. Conrad to determine if the survivor has a reasonable apprehension of future abuse.
• Whether the initial restraining order was based on physical or nonphysical abuse does not matter, the previous abuse may be enough on its own to justify renewing the restraining order and that is also true in cases where no further abuse, such as restraining order violations, has occurred.
• The Domestic Violence Prevention Act does not distinguish between physical and non-physical abuse.
• Stalking and controlling behaviors are serious predictors of future harm. Renewal of DVROs can help prevent ongoing abuse by stalkers who may persist even after the order expires.
• Courts should adopt a practical view of DVRO renewals. The Ritchie framework guides courts to assess the nature of the problem, external changes in the situation, and any burdens on the restrained party. The court must determine if there is a reasonable apprehension of abusive behavior resuming after the order expires.

FVAP would like to thank Cory Hernandez, Shuray Ghorishi and Jennafer Dorfman Wagner, for their work on the matter. 

A special thank you to co-counsel Jeremy B. Rosen, Melissa B. Whalen, and Nicole P. Hood of Horvitz & Levy. 

We are also deeply appreciative to Mary-Christine Sungaila of Complex Appellate Litigation Group, whose Amicus Curiae brief on behalf of California Women’s Law Center was extensively quoted in the opinion.

Published Amicus Brief