New Opinion on Domestic Violence

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handsA significant opinion has been published by California’s First Appellate District Court of Appeal expanding the judicial interpretation of California domestic violence statutes.  As taken from the opinion:

In February 2010, Perez filed a request for a DVRO against Torres-Hernandez to stay away from her and their two children, eight and two-year-old daughters, as well as Perez’s ten-year-old son from a previous relationship.  Perez and Torres-Hernandez had been in a relationship for 10 years and Perez claimed many instances of physical and emotional abuse by Torres-Hernandez.

The court held a hearing and both Perez and Torres-Hernandez testified.  The court issued a three-year restraining order preventing Torres-Hernandez from doing the following things to Perez: “[h]arass, attack, strike, threaten, assault (sexually or otherwise), hit, follow, stalk, molest, destroy personal property, disturb the peace, keep under surveillance, or block movements.”  The order provided sole physical custody of the children to Perez, and weekend visitation with Torres-Hernandez.  The restraining order expired on March 16, 2013.

In September 2011, Perez filed a petition to modify the restraining order to include protection for her three children.  Perez claimed that during Torres-Hernandez’s visits with the children, he had physically abused them.  After a visit with Torres-Hernandez, their younger daughter had bruising on her chest.  The daughter told Perez that Torres-Hernandez was angry and hit her.  Torres-Hernandez was arrested after the incident.

Perez explained that Torres-Hernandez had been abusive to her throughout their relationship but had not previously hit the children.  She said that since the restraining order was issued, Torres-Hernandez had hit the children with his hands or objects, including shoes.  He had previously hit the younger daughter causing bruising on her lip.  Perez claimed that Torres-Hernandez also hit her son with a belt causing a welt on his leg.

The court suspended visitation between Torres-Hernandez and the younger daughter and ordered supervised visitation with the older daughter.  The court amended the order to prohibit Torres-Hernandez from making contact with Perez including phone calls, e-mails, and text messages.

In February 2013, Perez petitioned the court for a permanent renewal of the restraining order.  Perez alleged that Torres-Hernandez had repeatedly violated the order.  He called her from an anonymous number but identified himself as the caller and told her to stop going to court and to stop asking for child support.  She also alleged that Torres-Hernandez was facing child abuse charges for hitting their younger daughter. The court held a contested hearing on March 13, 2013.

The court found “there is no basis to extend this order on a permanent basis.  I find that there is insufficient evidence as to a reasonable belief of continued abuse.  There is no evidence before the Court that there has been actual abuse within the time period that the restraining order has been issued.”  The court found that the abuse, if true, had been toward the children, but that was irrelevant as to the abuse alleged by Perez “because it does not speak to any abuse that Ms. Perez has been subjected to.”  Perez has been subjected to “annoying phone calls.  I wouldn’t let it rise to the level of a pattern of harassment, but the phone calls are intended to annoy her.”

The court stated it did not find Torres-Hernandez’s testimony to be “particularly persuasive,” and “there may be some credibility issues.”  The court found that Torres-Hernandez made the phone calls and sent the text messages in violation of the restraining order, but that this was not enough to extend the DVRO.

The court stated:  “Abuse is not merely simply annoying or harassing—occasional harassing phone calls intended to annoy the other person.  Abuse is not exerting your rights under the law to say, you know ‘If you keep going to court, you may lose out.  The kids may—they’re tired of putting up with a crazy mother.’ ”  Stating an opinion does not rise to the level of a threat of violence or actual infliction of violence.  Abuse must be “violence or the infliction of violence on an individual.”  Therefore, there was insufficient evidence of a reasonable belief of continued abuse to support extension of the order.

The Court of Appeal reverses.

The key consideration for the court is not the type or timing of abuse, but whether the protected party has a reasonable fear of future abuse.  “A trial court should renew the protective order, if, and only if, it finds by a preponderance of the evidence that the protected party entertains a ‘reasonable apprehension’ of future abuse.”  (Ritchie, supra, 115 Cal.App.4th at p. 1290.)

Perez testified that Torres-Hernandez’s post-order telephone calls and text messages made her feel “scared and helpless,” particularly in light of the course of misconduct that led to the original restraining order.  She said that the restraining order had not stopped him so she felt fearful and helpless.  She described Torres-Hernandez as an aggressive person capable of violence, and testified that she feared for her own safety and the safety of her children.

Perez’s testimony established a reasonable apprehension of future abuse.  Torres-Hernandez had continued to contact and threaten her even with the DVRO in place.  While he did not physically abuse Perez after the order was issued, he had physically abused their children and Perez’s son.  As detailed below, this abuse was relevant to the continuance of the order.

Not only did the [trial] court err by requiring a showing of ongoing harassment to extend the order, but the court also concluded there must be a showing of post-order abuse constituting “violence or the infliction of violence on an individual.”  The court incorrectly concluded that the evidence must show “violence or an actual infliction of violence” in order to renew the DVRO order.

To the contrary, the definition of abuse under the DVPA is much broader.  Annoying and harassing an individual is protected in the same way as physical abuse.  “Because of an amendment in 1998, protective orders can be issued because of persistent unwanted phone calls or letters—which fall into the same category as ‘molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, [or] harassing’ the protected party.  That pattern of unwanted phone calls or letters may support the same set of prohibitions in the initial protective order as one predicated on a series of violent beatings.”  (Ritchie, supra, 115 Cal.App.4th at pp. 1290‑1291, fn. omitted.)

The [trial] court also found that any abuse by Torres-Hernandez towards the couple’s children was irrelevant “because it does not speak to any abuse that Ms. Perez has been subjected to.”  We conclude the court also should have considered the abuse of Perez and Torres-Hernandez’s daughters and Perez’s son in determining whether to renew the order.

Under the DVPA, abuse is not limited to the protected party seeking the order.  The definition of abuse includes placing “a person in reasonable apprehension of imminent serious bodily injury to that person or to another.”  (§ 6203, subd. (a)(3), italics added.) Child abuse, with no abuse of the protected party, can support the issuance of a DVRO.

Section 6320 describes enjoinable behavior as including “disturbing the peace of the other party. . . .”  (§ 6320, subd. (a).)  “ ‘[D]isturbing the peace of the other party’ ” means “conduct that destroys the mental or emotional calm of the other party.”  (In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1497.)  The abuse of their children destroyed Perez’s emotional calm and made her fear for her safety and the safety of her children.  This is evidence the court should have considered under the statute in ruling on the renewal of the DVRO.  (See Rodriguez v. Menjivar (2015) 243 Cal.App.4th 816, 822 [the court must consider evidence of acts of emotional abuse that destroys a person’s “mental and emotional calm” as the basis for a DVPA order].)

By clarifying that violence against children can support continuation of a restraining order for the protection of the custodial parent this holding can be interpreted as an expansion of California’s body of law on domestic violence. Please click here to read the original opinion.

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