Cases You Can Use
Below is a list (alphabetically) of FVAP’s published cases. These cases are binding legal precedent in all trial courts in California, and can be used to support domestic violence-related cases in trial court.
Please note: This is not a comprehensive list of all California domestic violence-related case law. Rather, it is a list of FVAP’s published cases since 2012. Laws often change. Reviewing this list is not a suitable substitute for legal research specific to your case. Additional legal research should be done before citing any case law in trial court. While a decision below may be used to support your (or your client’s) case in court, it may not be the best decision to use in your particular case, and/or there may be additional cases that you should cite. This list does not constitute legal advice, and does not create an attorney-client relationship between you and FVAP.
To read a decision, click on the case name. See our Legal Resource Library for toolkits, tip sheets, court templates, and other custody resources for survivors.
FVAP Case Law
The Court of Appeals affirmed, holding the trial court used the right legal standard in finding Wife had a reasonable fear future abuse would happen without renewal of her DVRO. The opinion confirms for the first time abusive litigation behavior and violating court orders, such as those relating to support, fees, and child custody and visitation, should be considered when deciding whether to renew a DVRO. In particular, the opinion describes how Husband violated court orders and tried to “financially starve” Wife and pressure her into dropping her DVRO. While renewing a DVRO does not require violations of that DVRO, the opinion explains how Husband’s actions of electronic stalking and financial abuse were relevant for whether to renew a DVRO. Finally, the opinion notes DVRO renewals should take into account the facts and evidence that led to the initial DVRO. FVAP co-counseled this case with Horvitz & Levy LLP.
(When Special Immigrant Juvenile Status is denied because of an absent parent; and seeking immigration relief) In this decision, the California Supreme Court held that family courts do not need to require an absent parent to appear in court in order to issue Special Immigrant Juvenile Status (SIJS) findings for an abused, neglected, or abandoned minor, as long as the minor has properly served the absent parent. The Court further held that a juvenile court cannot deny a request for SIJS findings because the minor’s primary motive is to obtain immigration relief. This outcome is important because seeking cooperation from an abusive parent can put the child or the other, abused parent in danger and expose them to unnecessary trauma. (FVAP submitted an amicus (friend-of-the-court) brief) Pro bono co-counsel: Mayer Brown and UCI School of Law
(When “situational abuse” is used as a requirement to submit proof of new abuse). In this case, a survivor of domestic violence appealed a trial court order denying her request to renew her restraining order. The Court of Appeal granted the appeal. This case clarifies for the first time that labelling abuse as “situational” is not a legal reason to require proof of new abuse in order to renew a domestic violence restraining order. Further, the opinion explains that a prior court finding that the restraining order was not violated, which was made for purposes of a custody determination, cannot prevent a survivor of abuse from using that same evidence to show that a restraining order should be renewed. FVAP obtained publication.
(“Disturbing the peace” as domestic violence in non-marriage relationship) This is the first case to interpret “disturbing the peace” as defined in the Domestic Violence Prevention Act in the context of a non-marital relationship, especially when telephonic, digital, and in-person contacts impact the abuse survivor’s sense of safety and security. (FVAP obtained publication.)
(When a parent who committed domestic abuse is granted 50/50 child visitation) After years of violent abuse from her ex-husband, the trial court granted our client a restraining order. At the same time, the court granted a 50% visitation timeshare of her children, meaning both parents had the children for about half of the time. This order effectively got around the legal presumption against awarding joint custody to an abuser (Family Code 3044) by calling the arrangement “sole custody” to our client, and “visitation” with the parent who had committed abuse. The Court of Appeal disagreed with the trial court, and confirmed that a 50/50 visitation timeshare order is in fact the same thing as a joint custody order. Therefore, the Court of Appeal said, the trial court committed an “abuse of discretion” by awarding the 50/50 visitation timeshare without applying the legal presumption of Family Code 3044, which says courts should err on the side of not granting custody to a parent who was found to be abusive. This case clarifies that the Family Code 3044 legal presumption (against awarding joint custody to a parent who committed domestic abuse) remains in effect for 5 years, even if a restraining order against the abuser has expired. This is also the first published opinion to confirm that Family Code section 3011(e)(1) requires the trial court to state, in writing or on the record, its reasons for deciding that a parent who committed abuse has overcome the section 3044 presumption, and should be awarded joint custody. Thus, the appellate court’s opinion clarifies the interplay between section 3044 and section 3011. (FVAP litigated this appeal and obtained publication.) Pro bono co-counsel: Gibson Dunn & Crutcher, LLP, and Legal Aid Society of Orange County
(When there is a recent restraining order against the abusive parent) The Court of Appeal ruled that the trial court is obligated to apply the Family Code section 3044 in cases when there was a recent restraining order issued against a parent. Code 3044 is the “rebuttable presumption” against granting custody to an abuser, which says a trial court should err on the side of not giving child custody to a parent who was found to have committed domestic abuse. (FVAP litigated this appeal and obtained publication.) Pro bono co-counsel: Dentons US
FVAP joined nine other national and Washington organizations as amici in support of a survivor and her child who had fled to the United States because of domestic violence. The Father, who lives in Spain, was given sole custody of the child. When Mother was visiting the child in Spain she observed aggressive behavior and testified about several detailed instances of child abuse by Father. Mother fled with the child to Washington state. Father filed a petition under the Hague Convention to have the child returned to him in Spain. In her defense, Mother argued that returning the child to Father would present a “grave risk” of psychological or physical harm to the child. Mother asked for a forensic psychologist to examine the child and give an expert opinion about abuse and harm to the child. The trial court did not allow it and granted the Father’s request to return the child to him in Spain. Mother appealed. The 9th Circuit Court of Appeals said that there should be a balance between deciding these types of cases quickly and allowing the parent to gather evidence in support of their defense. This can include expert testimony, but not always. Here, the trial court said there would be no “discovery” of evidence and did not support its reasons why. The trial court had not allowed Mother the opportunity to make her case that the child was at grave risk of harm if returned to her Father. Also, the trial court did not independently support its reasons for granting the Father’s request, which is required. The order was vacated, and Mother was given a new trial and the opportunity to have a psychological expert testify.
(No reasonable apprehension of future abuse) The trial court in this case had denied our client’s request to renew a domestic violence restraining order because it said she did not have “reasonable apprehension of future abuse.” The Court of Appeal overturned that decision and said the trial court was wrong to deny the restraining order renewal on that basis, especially because the survivor had applied for the original restraining order after a “violent incident,” and because there was “evidence of a long and troubling history of physical abuse,” and because circumstances had not changed enough that the opportunity and likelihood of future abuse had diminished. (FVAP litigated this appeal, which the court published.) Pro bono co-counsel: Cooley Godward
(Child abuse is relevant in RO renewals) This is the first California decision to confirm that evidence of abuse against the child of someone who has a Domestic Violence Restraining Order (DVRO) is relevant information and should be considered when deciding whether to renew the DVRO, because abuse against a person’s child disturbs the protected party’s peace and can cause fear of future abuse to both the child and the protected party. Child abuse must also be considered when deciding whether “good cause” exists to add children as protected parties to a DVRO. The decision also confirms that fear of future physical abuse is not necessary to renew a DVRO. The opinion also summarizes many social science studies on the overlap between child abuse and intimate partner abuse. (FVAP litigated this appeal and obtained publication.) (Click here to read a San Francisco Chronicle article about the statewide significance of this case.) Pro bonon co-counsel: Folger Levin, Bay Area Legal Aid
(Violation of RO not required for renewal; and fear of non-physical future abuse) The Court of Appeal ruled that a trial court should not deny a restraining order renewal just because no abuse occurred while the restraining order was in place. This decision clarifies clarified that, to obtain a DVRO renewal, the survivor should not need to show fear of future physical abuse; fear of any type of future abuse, as defined by the Domestic Violence Prevention Act, should be sufficient for renewal. (FVAP litigated this appeal and obtained publication.) Pro bono co-counsel: Wilson Sonsini Goodrich & Rosati, Asian Pacific American Legal Center
(Out-of-state findings of domestic violence in custody cases) This is the first California case to clarify that an out-of-state court’s finding of domestic violence triggers California’s presumption against granting custody to an abuser, under Family Code section 3044. Importantly, this case also confirms that if a trial court relied, at all, on California’s preference that both parents have “frequent and continuing contact” with their children to rebut (overcome) the 3044 presumption, then the decision is automatically “infected with legal error,” and must be sent back to the trial court for a new custody hearing. This is because the preference that both parents have “frequent and continuing contact” with their children is not an allowable reason for rebutting (overcoming) the 3044 presumption, because California recognizes that domestic violence is detrimental to the health, welfare, and safety of children. (FVAP obtained publication.)
In this case, 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 their 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.
In this case, the juvenile court took custody of a child because of the father’s domestic abuse of the mother. The mother was ordered to participate in domestic violence and other services, and a restraining order was issued to prevent the father from contacting the mother. The mother was slow to complete her services and contacted the father. Her reunification services were terminated, which is the last step before terminating parental rights. This created a presumption that continuing in foster care was in the child’s best interest. The mother later completed all her services, and asked the court to return her child because circumstances had changed. The trial court denied her request. The Court of Appeal overturned that decision, and ordered the child returned to the mother. The Court of Appeal recognized that it is often the case that a victim of domestic violence will not immediately understand they are a victim, the fact that the mother did not immediately break free from the cycle of abuse did not mean it was not currently in the child’s best interest to be returned to his mother. (FVAP obtained publication.)
(Disturbing a child’s peace; and juvenile-court-ordered restraining orders) This case establishes that when a child witnesses domestic violence, their mental and emotional peace can be disturbed, which justifies a restraining order under the Welfare and Institutions Code. This case also explains that seeking a juvenile-court-ordered restraining order is appropriate when an abusive parent threatens to take a child from a non-abusive parent. (FVAP obtained publication.)
(Renewing a restraining order when the original order is being appealed) This case makes it clear that trial courts have the authority to renew a domestic violence restraining order while the original order is being appealed. (FVAP obtained publication.)
In this case, husband appealed the issuance of a domestic violence restraining order (DVRO) against him, arguing that the trial court improperly admitted wife’s testimony about husband holding a gun to wife’s head because that allegation was not in her written DVRO application. The appellate court upheld the DVRO, holding that it was proper to consider this testimony because her application requesting a DVRO included general statements that husband threatened to physically harm her. (FVAP successfully obtained publication in partnership with 11 other organizations.)
In this case, a survivor of domestic violence and their child came to the U.S. to flee abuse. Under the Hague Convention, when a parent comes to the U.S. to flee abuse, children with them are typically sent back to their “home country” for that country to make custody decisions. This case establishes that if the abusive parent is in denial of their domestic violence problem, then it cannot be safe to return the child, no matter whether the home country has strong laws about domestic violence or otherwise. (FVAP successfully obtained publication of this case in partnership with 22 domestic violence organizations and academics.)
(Disclosing private/intimate information about someone can be abuse; and abusive speech is not protected by the 1st Amendment) The Court of Appeal ruled that (1) physical abuse is not necessary to issue a restraining order; (2) disclosing intimate details of someone’s life, even if the information is legally obtained, can constitute abuse; and (3) abusive speech is not protected by the 1st Amendment to the U.S. Constitution. (FVAP obtained publication.)
(When custody is granted to an abuser) The Court of Appeal ruled that the trial court made two mistakes (twice “abused its discretion”) by awarding joint legal custody without applying Family Code section 3044, which says courts should almost never award joint legal custody to a parent who has committed domestic abuse against the other parent in the past five years, because it would be detrimental to a child’s best interest. This presumption against awarding joint custody applies when there has been a finding of abuse, even if a request for restraining order has been denied. Until the abuser rebuts (overcomes) the presumption against awarding joint custody, the presumption must be applied every time a court considers custody, even if the custody order will only be temporary. (FVAP litigated this appeal, which the court published.) Pro bono co-counsel: Reed Smith
(Requesting attorney’s fees after RO application is filed) The Court of Appeal ruled that (1) a party is not barred from requesting attorney fees where the request was not made in the initial restraining order application, and (2) a request for attorney fees arising from a domestic violence restraining order petition need not be decided with the restraining order petition. (obtained publication)
(Restraining order despite brief reconciliation) This is the first decision to clarify that a restraining order may be issued even if there is a brief period of reconciliation between the two parties after a temporary restraining order (TRO) was issued. The case also explains that the testimony of one witness, such as the person requesting a restraining order, can be sufficient evidence to support a Domestic Violence Restraining Order. The protected party in this case testified that the reconciliation was “part of their six-year repeated cycle of violence, gifts, forgiveness, sex, and then repeated acts of violence”; thus, her explanation was consistent with the trial court’s decision to issue the restraining order. (FVAP obtained publication.)
(Renewing in family court ROs issued by juvenile court) In the first ever ruling of its kind in California, the Court of Appeal confirmed that, after juvenile court case is dismissed (i.e., the juvenile court has terminated its jurisdiction), a family court can renew a domestic violence restraining order (DVRO) that was originally issued by the juvenile court. There should be no difference in the way a family court renews a DVRO, whether it was issued by a family court or a juvenile court. (Pursuant to Family Code section 6345.) This is important because renewed restraining orders can last longer (five years or permanently) than new restraining orders (five years or less). (FVAP litigated this appeal and obtained publication.) Pro bono co-counsel: Mayer Brown.
(Restraining order for a parent whose child is the abused party) The Court of Appeal ruled that a parent can seek a restraining order based on abuse against their child, because abuse of a child can disturb the peace of the parent requesting the restraining order, and can give the parent reasonable apprehension of imminent serious bodily injury to their child. (FVAP submitted an amicus (friend-of-the-court) brief and obtained publication.) Pro bono co-counsel: Reed Smith
(CA restraining order against out-of-state person (cyber abuse, etc.)) The Court of Appeal’s opinion confirms that, if a person in another state commits an act of domestic violence against someone who is in California (for example, via social media or electronic communications), then the California court can (has jurisdiction to) issue a restraining order against the abusive out-of-state person. This decision also confirms that California’s Domestic Violence Prevention Act (DVPA) is a “special regulation,” meaning the effects of domestic violence warrant special jurisdiction over out-of-state persons who commit acts domestic violence against California residents. (FVAP litigated this appeal and obtained publication.) Pro bono co-counsel: Lieff Cabraser Heimann and Bernstein
(A mutual restraining order requires both parties to file restraining order requests) The Court of Appeal ruled that trial courts may issue mutual domestic violence restraining orders only if both parties have filed requests for restraining orders. (FVAP provided legal technical assistance and research support to counsel, Neighborhood Legal Services of Los Angeles. FVAP also obtained publication.)
The Court of Appeal explained that the trial court made an error by considering the parties’ allegations separately and determined that 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 ruled that the opposing party was the most significant aggressor, and only he should have been restrained. The Court of Appeal also ruled that the trial court made an error by relying on the survivor’s previous criminal conviction to issue a mutual restraining order against her because it did not relate to domestic violence or other serious violence.
(Custody) Under California law there is a presumption against awarding any custody to a domestic abuser. This means the court must give the survivor sole legal and physical custody, unless the abuser shows the presumption has been overcome, or “rebutted.” When deciding whether the presumption has been rebutted, the court must consider 7-factors which are designed to help the trial court consider the effects of domestic violence and whether it will reoccur. The presumption and rebuttal factors are found in California Family Code section 3044. The 7 rebuttal factors are: best interest of the child(ren), successful completion of a batterer’s intervention program, successful completion of alcohol or drug counseling – if appropriate, successful completion of a parenting class – if appropriate, whether the perpetrator is on probation or parole and complying with the terms and conditions, whether the perpetrator is under a restraining order and has complied with the terms and conditions, and whether the perpetrator has committed any further acts of domestic violence.
The opinion in Jaime G. establishes that a trial court cannot award any type of custody to a domestic abuser without first making findings in writing or on the record (orally) about each of the seven-factors. It is not enough just to find that joint custody is in the best interest of the child, the first factor.
The California Supreme Court struck down San Diego’s policy that eliminated court reporters from civil cases because the policy contained no exception for low-income people who had received fee waivers. Under this case, all counties statewide are required to provide court reporters to low-income litigants who have fee waivers and who request a court reporter, free of charge. This is a sweeping decision that impacts all low-income litigants in California, including survivors of domestic violence, many of whom are low-income. FVAP and 30 supporting organizations, with co-counsel Morrison & Foerster, filed a friend-of-the-court brief in support of this result.
(“Primary aggressor” in mutual restraining order action) In this decision, the Court of Appeal defined “primary aggressor” for the first time in the context of mutual restraining orders, and ruled that the larger context of the parties’ relationship must be considered when determining who is the “primary aggressor.” (FVAP obtained publication.)
(Failure to protect) Generally, the State of California, each county’s child welfare services department can petition a juvenile dependency court to establish dependency jurisdiction over a child whom a parent who has “failed to protect,” from, among other things, the effects of domestic violence. In this case, a dependency (abuse or neglect) action was filed for the survivor’s “failure to protect” her children from the effects of domestic violence. The Court of Appeal reversed the finding that a mother had failed to protect her children from the father’s domestic violence, because his violence was not foreseeable and the mother had immediately reported the abuse to the police. (FVAP obtained publication)
(Spousal support) This case of first impression holds that spousal support can be awarded in a domestic violence action before a finding of domestic violence has been made. Pro bono co-counsel: O’Melveny & Myers, Aitken Family Violence Clinic (Chapman University)
(Modifying out-of-state custody orders after fleeing abuse) The Court of Appeal ruled that California trial courts can modify (have jurisdiction to modify) another state’s custody order at the request of a survivor of domestic violence who fled to California because of abuse that happened in the other state. This is because, under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), California can become the legal “home state” of a child within 6 months of the abused parent filing for a restraining order and custody order in California. (FVAP litigated this appeal and obtained publication.) Pro bono co-counsel: Simpson Thacher & Bartlett
(Spousal support for immigrant survivors) In the first ever ruling of this kind in California, In re Marriage of Kumar ensures the rights of California immigrants who are brought to the United States by a spouse or loved one who legally promises to financially support for 10 years through a federal immigration form, I-864 Affidavit of Support. Our client was brought to the U.S. following an arranged marriage in Fiji. During their brief marriage, she survived domestic abuse, resulting in her husband’s arrest. Husband filed a petition for annulment and, in the alternative, dissolution of marriage, and in response, wife requested spousal support. When husband sought to terminate temporary spousal support, wife raised a breach of contract claim with respect to the I-864 Affidavit of Support. The family court refused to enforce the I-864 Affidavit of Support because our client was not seeking full-time work or working to her “full earning capacity.” The California First District Court of Appeal reversed the trial court’s order, holding that an immigrant sponsor is under no duty to mitigate his or her damages by seeking full-time work. In so doing, the Court also noted that a sponsored immigrant is not obligated to file a separate civil action for breach of contract, but rather may seek to enforce the I-864 in family court. (counsel; obtained publication) Pro bono co-counsel: Orrick, Herrington & Sutcliffe, and Bay Area Legal Aid
(Renewal based on non-violent violation of RO) The Court of Appeal clarified that any violation of a restraining order, including a non-violent violation, is very serious and gives significant support for renewal of a domestic violence restraining order. (FVAP obtained publication)
(Addressing “failure to protect” charges) The Court of Appeal ruled that, if a non-abusive parent denies a restraining order, they should not be charged with “failure to protect” their child from the abusive parent. In this case, the mother was charged with “failure to protect” her children from their abusive father just because she declined a protective order 7 years earlier. The decision notes that obtaining an emergency protective order is “an advisable but not mandatory course of action.” (FVAP obtained publication)
(Coercive and controlling behavior are domestic violence under California’s restraining order laws and the totality of the circumstances needs to be considered when determining whether to issue a restraining order) In this case, Ms. Smith proved that Mr. McCord had disturbed her peace, which is one definition of abuse in California’s restraining order laws, by repeatedly visiting her uninvited, texting her, emailing her, and sending her harassing and threatening photos. The trial court issued a restraining order protecting Ms.Smith and Mr. McCord appealed. The Court of Appeal upheld the restraining order explaining that courts should consider the totality of the circumstances when deciding whether to issue a restraining order. In this case seemingly isolated events — like texting a picture of Ms. McCord’s professional license — were part of an overall series of actions that were used as a means of exercising control and dominion over Ms. Smith which threatened her peace of mind and sufficiently justified a restraining order. (FVAP obtained publication.)
(Mutual restraining orders) The Court of Appeal held that the trial court made an error by issuing a mutual restraining order without making the factual findings required under the Family Code. In this decision, the Court of Appeal also ruled that restraining orders based on separate incidents are mutual restraining orders, affirming that domestic violence is often a series of separate but related incidents. Pro bono co-counsel: Covington & Burling
(Likelihood of future abuse is not required) The Court of Appeal ruled that, in order to issue a restraining order, the trial court is only required to find a past act of abuse. The court is not required to find likelihood of future abuse. (FVAP litigated this appeal, which the court published.) Pro bono co-counsel: Taylor & Company
In this decision, a survivor of domestic violence moved out of the joint residence she shared with her abuser for her safety. She then requested that her abuser move out of their residence as part of her domestic violence restraining order request, but her abuser claimed that because the survivor had already moved out, he should not have to move. The Court used the abuser’s past acts of abuse and stalking to determine that further harm would have come to the survivor if a move-out order was not made, and a survivor should not have to permanently vacate their residence because they previously moved in order to flee abuse. This is important because if a survivor is living with an abuser, temporarily moving out is a matter of staying safe. (FVAP obtained publication.)
(International “child abduction” by non-abusive parent) The Court of Appeal ruled that, in an international child abduction case where it is alleged that the child faces “grave risk” of harm if returned to the home country, there must be a fair hearing where the trial court considers any relevant evidence about abuse when making any decisions about important issues. The trial court in this case failed to provide this fair hearing to the mother, who alleged that spousal and child abuse by the father made it unsafe for them to return to the country. The Court of Appeal overturned the trial court’s decision and confirmed that, where there is evidence that the status quo in the home country was abusive, the survivor’s and children’s speedy return to the home country should not be the goal for California courts. (FVAP filed an amicus (friend-of-the-court) brief and obtained publication.) Pro bono co-counsel: O’Melveny & Myers
(When a temporary restraining order is violated; and a request for a long term restraining order is denied) In this case, the Court of Appeal overturned the trial court’s denial of the domestic violence restraining order request. In doing so, the Court of Appeal ruled that a violation of a temporary restraining order constitutes abuse under Family Code section 6203(a)(4). The Court of Appeal also held that the conduct underlying the violations constituted abuse under Family Code section 6320. (FVAP represented the survivor and obtained publication.) Pro bono co-counsel: Jones Day, UCI Domestic Violence Law Clinic
(Definition of “dating relationship”) This is the first case to discuss what constitutes a “dating relationship” under the Domestic Violence Prevention Act (DVPA). The DVPA allows a trial court to issue a domestic violence restraining order (DVRO) for only certain qualifying relationships, including “dating relationships.” The Court of Appeal in this case decided that, where the parties are “more than mere friends,” and evidence shows “frequent intimate associations primarily characterized by the expectation of affection” — in this case, via text messages — then this counts as a “dating relationship” for purposes of issuing a DVRO. This decision can help in obtaining a DVRO even if the relationship does not fit a traditional definition of “dating.” (FVAP obtained publication.)
(Renewing in family court ROs issued by juvenile court) Another case of legal precedence, this decision extends the protections of Garcia v. Escobar (above), which says Domestic Violence Restraining Orders issued by juvenile courts can be renewed in family courts. Priscila N. goes further, clarifying that all DVROs should be treated the same for renewal purposes, and that a restraining order issued by a juvenile court should be considered to have been “issued” under the Domestic Violence Prevention Act of the Family Code for the purpose of renewal. This decision also confirms that the language of California’s Family Code (which governs family court proceedings) and the Welfare and Institutions Code (which governs juvenile court proceedings) work together and should be applied broadly to affect the Legislature’s intent of providing the best possible protections for California domestic violence survivors. In other words, family and juvenile courts statewide should work together to protect survivors. For practical tips on how to use this case to support clients who are domestic violence survivors, click here. (FVAP counseled this case, and the Court of Appeal published this decision.) Pro bono co-counsel: Manatt Phelps, Harriet Buhai Family Law Center
(Controlling or coercive behavior) The Court of Appeal’s opinion clarifies that controlling and coercive behavior does count as abuse under the Domestic Violence Protection Act, and that the length of time since abuse occurred (in this case, about 6 months since the temporary restraining order was issued) has never been a basis for denying a Domestic Violence Restraining Order in California. (FVAP litigated this appeal and obtained publication) Pro bono co-counsel: Gibson Dunn & Crutcher, Los Angeles Center for Law and Justice
(Considering children’s extracurricular activities; considering overall career when determining “burden” to restrained party) This case involving a domestic violence restraining order (DVRO) renewal establishes legal precedence in at least two ways. First, the appellate court affirmed the trial court’s consideration of a restrained party’s actions (threatening, harassing, controlling, and manipulating) toward the survivor during shared parenting time (their child’s extracurricular activities) as “abuse” under the Domestic Violence Prevention Act (DVPA), and as violations of a DVRO. Thus, this case instructs trial courts to consider everyone’s physical and emotional safety and wellbeing when crafting parenting plans (custody and visitation). Second, the appellate court affirmed the trial court’s considerations of the “burdens” that a DVRO renewal could place on the restrained party, and said trial courts should consider the restrained party’s overall career to determine how a renewed DVRO could impact their employment prospects. (The only California case other than Lister v. Bowen (above) to discuss possible “burdens” to the restrained party since 2004.) (FVAP obtained publication.)
(Unwanted and harassing contacts) The Court of Appeal affirmed that unwanted and harassing contacts, even without allegations of violence or threats, are sufficient to issue a three-year domestic violence restraining order (DVRO). The court also granted the DVRO because the restrained party failed to properly challenge the trial court’s exercise of jurisdiction over him. (FVAP litigated this appeal and obtained publication.) Pro bono co-counsel: Sucherman & Insalaco
(English language proficiency as a factor in custody) The Court of Appeal ruled that English language fluency cannot be used as a reason to grant custody. English language fluency now joins 6 other prohibited reasons to grant custody including: race, religion, disability, sexual orientation, relative economic position, and working motherhood. FVAP’s successful work to pass California legislation, AB 2044, which went into effect on January 1, 2019, nullified many of the parts of the decision that we disagree with. (FVAP litigated this appeal, which the court published.) Pro bono co-counsel: Horvitz & Levy, Legal Aid Society of San Diego
In this case, the appellant argued that it was inappropriate that the restraining order against him included additional family or household members. The Court of Appeal held that there was “good cause” to include the additional members on the restraining order because the repeated abuse occurred outside of the home. The Court of Appeal also defined “good cause” for adding family or household members to a protective order stating “as a general rule, “good cause” includes reasons that are fair, honest, in good faith, not trivial, arbitrary, capricious, or pretextual, and reasonably related to legitimate needs, goals, and purposes.” (FVAP obtained publication.)
Vinson v. Kinsey – Survivor’s Ongoing Contact With the Person Who is Abusive Does Not Mean Abuse Did Not Happen
In Vinson v. Kinsey, the survivor asked the trial court for a domestic violence restraining order because her ex-partner physically abused her and threatened to kill her. In addition to her declaration, the survivor provided the court with six written declarations from witnesses to verbal abuse and/or her physical injuries. The survivor also gave the court copies of text messages where her ex-partner admitted that he had threatened to kill her and admitted to hitting her in the past. Despite this evidence, the trial court denied the survivor’s request for a restraining order, concluding that the survivor was not “concerned” about her ex-partner’s “comment that he would kill her” because she continued to have contact with him. The appellate court overturned the trial court’s decision to deny the restraining order and sent the case back for the trial court to decide whether a restraining order should be issued. The appellate court explained that threats do not need to be threats of violence to constitute abuse under California law. The appellate court further noted that “other aspects of the trial court’s ruling [were] also troubling,” namely that the trial court wrongly focused on the survivor’s continued contact with her ex-partner. In doing this, the trial court “effectively imposed on [her] a singular vision of how an abused woman should act” when “[all] women exposed to violence and abuse . . . do not respond similarly.” FVAP successfully co-counseled this matter with Latham & Watkins, LLP.
FVAP is thankful to have co-counseled with Latham & Watkins, LLP on this matter.
The appellate court’s published opinion can be found here.