The following cases were legal victories for FVAP clients (survivors of abuse), but were not published by the Court of Appeal. They cannot be cited in trial court.
In this case, the Court of Appeal ruled that the trial court had awarded an abusive parent substantial visitation time that amounted to custody without applying section 3044 of the Family Code, which must first be applied to determine whether it is in the best interest of the child to award any custody, or substantial visitation amounting to custody, to a parent who has been found to have committed domestic violence. Additionally, the Court of Appeal provided guidance to the trial court to consider whether the father has shown a change in circumstances sufficient to modify the prior custody order.
(FVAP litigated this appeal.) Pro bono co-counsel: Haynes and Boone, Central California Legal Services. Amicus brief filed by California Women’s Law Center, and their co-counsel and Manatt Phelps.
In re Marriage of I.T. and A.T. (Cal. Ct. App. July 23, 2014) 2014 WL 3616238.
The Court of Appeal ruled that the party seeking a domestic violence restraining order need not demonstrate she was not the “primary aggressor” or that the other person was the primary aggressor. (Pro bono co-counsel: Mayer Brown; unpublished)
Vafai v. Weissman (Cal. Ct. App. June 17, 2014) 2014 WL 2736087.
The Court of Appeal upheld our client’s five-year restraining order protecting her from an ex-boyfriend who physically abused her and threatened her life. (Pro bono co-counsel: DLA Piper, and FVAP pro bono attorneys from Qualcomm; unpublished)
Maria C. v. Luis C. (Cal. Ct. App., No. F076195 Sept. 26, 2018).
The Court of Appeal reversed one-half of a mutual restraining order that the trial court had issued against our client. The factual findings made by the trial court did not support the trial court’s determination that our client acted as “a primary aggressor” which is required by Family Code section 6305 in order to issue a mutual restraining order. Neither approaching Luis’s home when he failed to bring the children for a custody exchange without calling the police for help, nor – after being abused – throwing a lamp she had picked up in self-defense at a parked car, supported a finding that Maria was a primary aggressor. Instead the facts demonstrated Maria’s conduct was a direct response to abuse at the hands of Luis and occurred not because she was continuing the confrontation but rather occurred while fleeing the abuse. When a trial court issues a mutual restraining order, the trial court is required to make detailed findings of fact, which the court of appeal opinion defines as “sufficient factual findings or analysis for the court of appeal to adequately review” the decision. Because the trial court had refused to apply the Family Code section 3044 presumption against granting custody to a parent who has abused the other parent, the appellate court said a new custody determination had to be made, and the presumption against custody applied to Luis. The inference is that the issuance of a domestic violence restraining order can be a change in circumstance to modify a prior child custody order. Pro bono co-counsel: Jenner & Block and Central California Legal Services
McIntyre v. Minkey (Cal. Ct. App. Dec. 15, 2015).
The Court of Appeal held it was an abuse of discretion to deny the DVRO renewal because the future abuse feared was not physical, or because the parties previously got back together, and the opinion strongly states that warnings from the bench are not substitutes for protective orders. (Pro bono co-counsel: Simpson Thacher & Bartlett, Bay Area Legal Aid; unpublished)
Haldar v. Superior Court of San Mateo ((2017) Case No. A151099).
FVAP co-filed a writ to force the Superior Court to finally hear our client’s restraining order application. From November 2016 through June 2017, the trial court repeatedly granted the abuser’s requests for continuances from our client’s husband, continually delaying the hearing and keeping our client from being able to obtain a long-term protective order, despite her objections. The husband had requested the continuances because he was facing criminal charges stemming from a domestic violence incident, and claimed the 5th Amendment to the U.S. Constitution enabled him to request such delays. While the 5th Amendment does include a guarantee against compelled self-incrimination, it cannot be used as a blanket basis for failing to hear civil matters. Instead, the court is required to perform a special inquiry into the particular circumstances and competing interests of the case before determining whether a continuance should be granted. On June 30, 2017, the Court of Appeal issued an “alternative writ,” ordering the San Mateo Superior Court to either schedule the hearing about whether a continuance should be granted, or explain why such hearing should not be held. A hearing was so scheduled, and the court refused to grant husband yet another continuance. Ultimately, after a contested hearing, our client was granted a long-term restraining order. Pro bono co-counsel: San Mateo Legal Aid, and Joel Silver of Gilead Sciences
Abrams v. Superior Court of San Mateo County (2017) Case No. A151086.
FVAP co-filed a writ to force the Superior Court to hear our client’s restraining order application. The trial court had repeatedly granted continuances to the opposing party, continually delaying the hearing for our client’s restraining order. The Superior Court did so without first determining whether the continuances were appropriate under the law. After the Court of Appeal set a deadline for opposition to the writ, the San Mateo Superior Ccourt heard the case and granted our client a long-term restraining order. Pro bono co-counsel: DLA Piper
Sathokvorasat v. Snyder (Cal. Ct. App., Jan. 17, 2017, No. B265998) 2017 WL 167517.
FVAP provided legal technical assistance to the Los Angeles Center for Law and Justice (LACLJ) in a successful appeal to the Second District Court of Appeal, which reversed the trial court’s decision to deny a restraining order to a survivor of domestic abuse under the Domestic Violence Prevention Act (DVPA). In this case, the survivor requested a restraining order under the DVPA because the father of her child disturbed her peace during a child visitation exchange by blocking her movements and videotaping her. The trial court denied her restraining order request, saying that the incident did not result in reasonable apprehension of serious bodily injury. In reversing the trial court’s decision, the appellate court reaffirmed that the definition of “disturbing the peace” under the DVPA is not limited to reasonable apprehension of serious bodily injury: it, and should also be applied if the purported conduct destroyed the petitioner’s mental and emotional calm. (FVAP provided legal technical assistance)
3 additional clients who were defending against appeals brought by their abusers had their cases dismissed after FVAP agreed to represent them, important legal victories that allowed them to keep the orders of protection issued by the trial courts that kept them and their children safe from abuse.