In this case, our client, Mother, got a domestic violence restraining order against Father after he physically abused her and refused to return their young son to her, requiring law enforcement to get involved. The family court gave Mother sole legal and physical custody, but left in place a visitation schedule giving Father three days a week and Mother four. Since this basically gave Father joint custody of the child for about 43% of the time, the family court was first supposed to see if Father had overcome the presumption against granting him custody, under Family Code section 3044, by analyzing the law’s seven factors in writing or on the record. Since the family court did not do that, the appellate court reversed the visitation order, and sent the case back to the family court to follow the law. In addition, the appellate court said the family court didn’t follow the law by refusing to give a “statement of decision,” which Mother had requested at trial, under Family Code section 3022.3. This is the first published opinion under Family Code section 3022.3.
Announcements
Victory for Survivors Seeking Restraining Order Renewals
FVAP successfully obtained publication of a new case! In this case, the survivor requested to renew a restraining order against her former husband but the trial court denied the request. The survivor appealed the denial and the Court of Appeal reversed the denial because the trial court made an error by only considering whether the former husband committed acts of domestic violence during a narrow window of time when the original restraining order was in effect, and not whether the survivor had a reasonable fear of future abuse. The case has been sent back to the trial court for them to properly apply the law.
Oral Argument Today on Dangerous Child Custody Decision
Today at 1:30pm, FVAP’s pro bono co-counsel from Wilmer Hale, Thomas Sprankling, will be arguing before the First District Court of Appeal, Division Two, where we, along with Bay Area Legal Aid, are representing a survivor of abuse appealing a dangerous child custody order.
In this case, after giving the survivor a three-year domestic violence restraining order and sole legal and physical custody, the trial court effectively granted the abusive parent joint physical custody by basically ordering 50/50 visitation, without applying the law presuming that is bad for children, found in Family Code section 3044. The trial court also failed to issue a statement of decision upon the request of the survivor’s attorney, despite Family Code section 3022.3.
We hope that today’s outcome will land in favor of the survivor.
Featured Legal Victory on Unjust Mutual Restraining Orders
Abusers often seek restraining orders to further abuse or control survivors. When the trial court is deciding mutual requests for restraining orders, they cannot enter mutual restraining orders without first deciding that both parties are primary aggressors within the relationship, and that neither of them were acting in self-defense. The reason for this rule is that mutual domestic violence is very rare, and wrongful mutual restraining orders put the real victim of abuse at risk.
In FVAP’s K.L v. R.H. case, the Court of Appeal explained that the trial court made an error by considering the parties’ allegations separately. Instead, the trial court should weigh the acts of the parties against each other to decide which person was the most significant aggressor in the relationship, and whether either of them acted in self defense. In considering the case this way, the Court of Appeal rightly ruled that the opposing party was the most significant aggressor, and only he should have been restrained.
The trial court also made an error by relying on the survivor’s previous criminal conviction to issue a mutual restraining order against her because it was irrelevant since it did not relate to domestic violence or other serious violence. Particularly for Black women, like the survivor in this case, overpolicing and racial stereotypes result in criminal convictions. The limitations on what kinds of convictions can be used in domestic violence restraining order cases ensures that this racial bias doesn’t also result in wrongful mutual restraining orders.
FVAP litigated this case in collaboration with pro-bono co-counsel, Sheppard Mullin Richter & Hampton, UCI School of Law Domestic Violence Clinic, and Legal Aid SoCal. The Court of Appeal then granted our request for publication.
2021 Legislative Advocacy Wrap-Up
In addition to advocating for survivors in court, FVAP works with local, state, and federal policymakers to ensure the statutes, rules, and regulations used in court have survivors’ best interests at the forefront. It was a busy year for us working on such advocacy efforts. In California, at the local level we worked with survivor support agencies to ensure their county government officials follow laws regarding confidentiality and mandated reporting. And nationally, FVAP lobbied and signed onto multiple letters urging policymakers to reauthorize the Violence Against Women Act (VAWA), establish an official awareness day for missing and murdered Native women and girls, improve the Family Violence Prevention and Services Act, and close loopholes in the Victims of Crime Act. So far, federal actions have occurred on the Victims of Crime Act.
At the state level in California, FVAP has staff who serve on the Judicial Council Family and Juvenile Law Advisory Committee and on the California Lawyers Association Appellate Courts Committee. FVAP has also worked to ensure sufficient funding in the budget for items such as increasing the Equal Access Fund, ensuring court reports for trial court hearings, providing for ongoing sexual and domestic violence prevention programs, and allowing more workers to take paid sick leave. In addition, FVAP has provided comments to the Judicial Council on changes to their domestic violence restraining order and other court forms, amendments to court rules on preventing bias in court interactions, and guidelines for video remote interpreting.
Perhaps FVAP has been most active in working on state legislation in California. On the housing side, of the bills that are now law, FVAP submitted letters in support of AB 832 to protect tenants impacted by COVID-19, and AB 838 to ensure more equity in local inspections of habitability. Regarding domestic violence restraining orders, FVAP supported AB 1057 to clarify what is a firearm, SB 24 to restrict abusers’ access to children’s school, medical, or work information, SB 320 to clarify trial court procedure for ensuring restrained parties have turned over their firearms, SB 374 to clarify that coercive control (a form of disturbing the peace, which is a type of abuse) includes reproductive coercion, and SB 538 to allow restraining orders to be filed electronically and parties to appear remotely. FVAP also supported AB 262 to ease the process for clearing criminal records for human trafficking survivors, SB 498 to expand eligibility for accessing services funded by the Interest On Lawyers’ Trust Accounts (IOLTA), and SB 654 to better protect children when testifying and when they are ordered to unsupervised visitation with an alleged abuser.
Some of the California bills FVAP has worked are now “two-year bills,” meaning they were not passed or dropped this year but will be continued to be worked on next year. These include AB 854 to temporarily stop Ellis Act evictions, AB 1493 to better protect against evictions of survivors, SB 373 to add debt protections for survivors, SB 537 to improve the child welfare system’s response to domestic violence, and SB 774 to provide for attorney-client privilege for complaints to the Department of Fair Employment and Housing (DFEH).
Finally, FVAP’s new Washington office has been active in that state. For instance, FVAP provided input on HB 1320, which significantly amended statutes relating to all of the civil protective orders. And FVAP’s Washington staff are heavily involved in multiple workgroups to implement this legislation and to ensure gender equity in family court.
Legal Victory: Case Publication on Survivor’s Eviction Defense
On August 11, the Appellate Division of the Los Angeles County Superior Court issued its opinion in our case of Elmassian v. Flores, where we represented a survivor of domestic violence who was evicted from her home for over a decade because of acts of abuse by former intimate partners. In the opinion, the appellate division agreed with us that our client had provided the trial court with correct documentation to show she was a survivor and enough evidence that the landlord’s complaints were based on acts of domestic violence to raise the domestic violence eviction defense, which generally bans landlords from evicting tenants because of act(s) of abuse against a tenant by a person who is not currently a tenant. The appellate division reversed the trial court’s judgment against our client. FVAP co-counseled this case with Basta, Inc. and Jones Day.
Legal Victory in Washington Helps Survivors’ Kids Who Have Witnessed Abuse and Might Testify
In partnership with three other gender-based violence and legal aid organizations, FVAP Washington successfully obtained publication in part of a case in which the Court of Appeals ruled that child testimony should not be excluded based on a blanket ban on allowing child witnesses in family law proceedings. Courts must first consider all the circumstances, including whether children have witnessed abuse. The decision also confirms that evidence about domestic violence is relevant, whether or not it is related to the children in the parenting plan trial. A parent’s history of domestic violence, child sexual abuse, and sexual assault that results in pregnancy must be considered. Read the opinion and order to publish in part.
