In re Marriage of A.M. and R.Y.

In this case, the trial court denied a facially adequate request for a domestic violence temporary restraining order (TRO).  The Court of Appeal ultimately reversed this determination and remanded for reconsideration of the TRO request.  The Court said that, since they are injunctions, granting or denying a TRO is directly appealable.  (Code Civ. Proc., § 904.1, subd. (a)(6).)  The Court also found that the survivor’s TRO request was facially sufficient because it alleged sexual abuse, unwanted contact, some physical abuse, verbal and emotional abuse, and violating an agreement on child visitation.  (Fam. Code, §§ 6203, 6320.)

The Court decided, however, that even with a facially sufficient DVRO request, a trial court can still deny a TRO if the court “conclude[s] that the circumstances do not warrant ex parte relief pending a noticed hearing.”  In doing so, the Court disagreed with Nakamura v. Parker, supra, explaining that a trial court cannot defer ruling on a TRO request (Fam. Code, § 6326) even if the trial court doesn’t think the survivor’s safety would be jeopardized until a hearing can be held.

If the trial court denies a facially adequate TRO request, the trial court must state its reasons (and reasons won’t be implied on appeal) that “reflect consideration of the fundamental purpose of the DVPA to prevent recurring acts of abuse.” (Fam. Code, § 6220.)  The Court noted the trial court “should carefully consider the seriousness and recency of the past abuse, whether it was an isolated incident or pattern, the likelihood of recurrence, the nature of the parties' relationship, the immediacy and seriousness of any threat, any changed circumstances, and any other relevant factors.”

The Court further noted that a TRO can’t be denied just because the abuse alleged “may have arisen in the context of a family law dispute.”

In sum, the Court’s major holding on TRO denials is:  “a trial court has discretion to deny a DVTRO to a petitioner who has made a prima facie showing of past abuse if it reasonably concludes based on the totality of circumstances that a DVTRO is not necessary to protect the petitioner or others for whom the petitioner is seeking protection from further acts of abuse pending the noticed hearing.”