Family Violence Appellate Project

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announcements

Washington Legal Victory! Mishko v. Kerr

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Mishko v. Kerr (WA)

Our request for publication of Mishko v. Kerr was granted! You can find the published opinion here. 

Why the case is important:
This publication will clarify when a trial court does not enter findings under RCW 26.09.191(1) and therefore errs in granting joint-decision making. It will also outline what constitutes substantial evidence of domestic violence. Additionally, the opinion specifically addresses continuing restraining order requests under Ch. 26.09 RCW and clarifies that substantial evidence of a history of domestic violence requires a court to consider a litigant’s request for a continuing restraining order.

Summary of the case:
After a trial to modify a parenting plan, the trial court entered limitations against the opposing party (“OP”) finding that he had engaged in “abusive use of conflict.”  The court found that communications toward the mother were abusive as well as cited several behaviors aimed at the minor child.  The trial court noted OP had completed a domestic violence treatment program.  The trial court also heard testimony about OP’s past domestic violence and admitted into evidence a current Domestic Violence Protection Order against OP (filed by a different intimate partner and mother of OP’s other child).  However, no ultimate findings of “a history of domestic violence” were entered into the final parenting plan, and the trial court granted joint decision-making to the parties.  The unambiguous statutory standard is that “a history of acts of domestic violence” mandates sole decision-making to the parent without a domestic violence finding.

The court agreed with FVAP that the trial court did not enter restrictions that limited joint-decision making despite substantial evidence of a history of domestic violence presented at the hearing and instructed on remand that the trial court must consider the request for a restraining order in light of that evidence

California Legal Victory! Y.L v L.T.

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In Y.L. v. L.T., FVAP successfully co-counseled with Katten Muchin Rosenman, LLP to file an Amicus Brief in support of L.T. In this case Y.L., the abusive party, filed an appeal after the trial court denied his request for a reciprocal domestic violence restraining order (DVRO) against L.T. On appeal Y.L. argued that there should be a bright-line rule that when someone reacts to emotional abuse with physical violence that person should be deemed a “primary aggressor” and a DVRO should be entered against them. The appellate court rejected Y.L.’s argument. The appellate court noted that, in mutual restraining order cases, 1) the trial court must determine which party is the most significant aggressor based on factors listed in Penal Code section 836 subd. (c)(3) and 2) the court must “consider the parties’ alleged acts of domestic violence in concert, and not separately” to determine whether someone is a primary aggressor. Our Amicus Brief addressed 1) how gender bias helps perpetuate erroneous primary-aggressor and self-defense determinations; 2) the detrimental effects of mutual-restraining orders on survivors, and 3) the need for courts to conduct detailed analysis in mutual restraining order cases to account for the history of abuse in the relationship and avoid inherent bias and stereotypes in domestic violence situations.

Read the unpublished opinion here. 

Washington Legal Victory! Protecting Survivors from Litigation Abuse

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Our client Isabelle Latour was successful in defending against her ex-husband’s multiple (we lost count after 4) appeals.  The Washington Court of Appeals held that Washington’s new statute preventing abusive litigation, ch 26.51 RCW, is constitutional, and survives separations of powers and due process challenges.  Washington is one of the first states nationwide with a strong abusive litigation statute, so this facial constitutional challenge to the statute could have had far-reaching implications and hindered states’ ability to try to curtail abusive litigation, which abusers use to continue their financial abuse and power and control over survivors of DV.  
 
The court further found that, as applied to Isabelle’s case, there was substantial evidence to find she was a victim of domestic violence, and the abuser’s litigation was done to harass, intimidate, and maintain contact with Isabelle.  Isabelle is very happy (but also expecting Sean to continue to litigate this matter).  The court’s opinion is unpublished, so we will be pursuing publication. 
 

Read the unpublished opinion here.

California Legal Victory! Keeping Survivors Housed

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Weil V. Gallegos (CA)

FVAP’s client lived with her boyfriend who was abusive.  Survivor requested a DVRO with a move out order, which would have excluded her boyfriend from their shared rental unit. The trial court granted the DVRO, but denied the move-out order stating it was up to the landlord, not the court, to decide who got to stay in the unit. Survivor appealed, and the Court of Appeal reversed the trial court’s judgment. The Court of Appeal reversed because a trial court has the power to order a restrained party to move out of a shared rental unit and a landlord does not have the authority to force just one tenant out of a shared rental unit.

FVAP thinks this is an important case because it is the first case explaining trial courts’ authority to grant move-out orders when parties live together in a rental unit.  Specifically, it plainly states that courts may grant move out orders excluding the restrained party from the shared rented home and may make orders regarding lease and utility payments. If published, this case may encourage more trial courts to grant move out orders, allowing more survivors to stay housed and avoid homelessness.

It also reinforces tenant protections against “self-help” evictions, which is when a landlord kicks out a tenant without going through the court eviction process. By explaining that a landlord cannot change the unit’s lock to lock out a tenant without a move-out order and by explaining the landlord’s obligation to go through the eviction process to regain possession of a premises, this opinion reinforces existing laws against self-help evictions.

FVAP has requested publication of this case. 

 

View the unpublished case. 

Transition Announcement – From the Board of Directors and Executive Director

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Executive Director Erin Smith stepping down in 2023 after 11 years

Executive search firm to conduct national search for FVAP’s next leader

It is with equal measures of pride for the organization’s past, and confidence for its future, that FVAP announces Executive Director Erin Smith has decided to step down in 2023. This will mark Erin’s 11th year leading FVAP, having co-founded the organization in 2012. In that time, under Erin’s stewardship, FVAP’s outstanding staff has grown the organization from a start-up non-profit to an established legal services organization providing statewide services in two states to survivors of domestic violence and gender-based abuse. Over the past 11 years, FVAP is proud to have:

  • Contributed to the publication of 57 legal cases in California and 1 in Washington State so far, which help 237,000 abuse survivors each year in California alone.
  • Expanded our effective, strategic statewide model to 2 states: California and Washington.
  • Grown to a staff of 18 supported by an annual budget of $2.4 million.

Erin proudly remains a Supporting Leader of FVAP’s 3-year Rise & Soar fundraising campaign. She plans to be FVAP’s most enthusiastic ambassador, and to support FVAP in the ways most helpful to the organization, in her new capacity for years to come.

It has been the honor and privilege of my career to have led Family Violence Appellate Project from inception to legal powerhouse over the last decade. After these many years, I am ready for a new challenge and excited to see what the next phase of my career has in store. I have been inspired to do my best every day by the courageous and powerful survivors we serve: those whose names we know because we represented them in their legal cases, and those whose names we don’t know because they are one of the hundreds of thousands of survivors whose cases benefit from the binding legal precedent that FVAP has helped to build. I am immensely proud of our dedicated staff who devote themselves to serving survivors and their children, and who are well-positioned to continue FVAP’s work moving forward.” — Erin Smith (she/her)

The Board is grateful to Erin for her decade long service to survivors, their families and advancing FVAP’s mission. Her vision and commitment to increasing access to justice to survivors led a strong set of programs that have grown in California and recently expanded to Washington State. Erin will be missed and we believe that the foundation she has laid to ground us in the core values of justice, diversity and equity have prepared FVAP for the next chapter. “The Board is excited to find FVAP’s next outstanding Executive Director to lead FVAP into this next phase of its future. We are confident that FVAP’s excellent staff and Board will position the incoming executive to succeed.” — Maricela Rios-Faust, Board Chair & Chief Executive Officer of Human Options, comprehensive domestic violence agency in Orange County, California

The Board has partnered with Scion Executive Search Firm to conduct a national search for FVAP’s next Executive Director. Scion has a strong commitment to Diversity, Equity and Inclusion and is working with the Board to ensure that the process of finding FVAP’s next Executive Director is inclusive, equitable, and results in a diverse group of candidates. Scion is a national, award-winning executive search firm that specializes in non-profit organizations and foundations, with clients including the Nevada Coalition to End Domestic and Sexual Violence, Maryland Legal Aid, Berkeley Student Cooperative, Nature Conservancy, and Make-A-Wish. Interested applicants should contact Ex Hopson (they/them) at ex@scionstaffing.com. FVAP will continue to share information during the search process.

For more information about FVAP, visit www.fvaplaw.org.

Click Here to Download Announcement

Roe vs Wade: The Outcome and Its Impact

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FVAP believes in reproductive rights and privacy. We believe in all persons’ rights to autonomy over their bodies and to make their own choices in healthcare decisions. Reproductive choice deeply impacts survivors of sexual assault and intimate partner violence, which can result in unwanted pregnancies. We know that domestic violence markedly increases during pregnancy, making pregnancy a particularly dangerous time for abuse survivors. FVAP recently supported a policy that helped clarify California’s Domestic Violence Prevention Act, recognizing that reproductive coercion is a form of domestic abuse. 

Reproductive coercion is one type of power and control where one partner strips the other of the ability to control their own reproductive system and timeline. It’s important to understand that reproductive coercion, rape-related pregnancy and domestic violence all intersect. A November 2021 study, the first of its kind in the U.S., found that pregnant women die by homicide more frequently than from pregnancy related health conditions. In fact, homicide is the number one cause of death for pregnant women in this country. The number increases for pregnant Black women and pregnant young women. Sadly, most of these women are killed by their partners. In other words, pregnancy increases a person’s chance of being killed by a partner. This is why FVAP remains committed to supporting policy that protects survivors of gender-based and intimate partner violence. We will continue to stand with our communities in solidarity and seek justice through our legal system.