Presented at the February 2024 AFCC-CA annual conference in San Francisco. Nancy K. D. Lemon has been a leading authority on domestic violence law for over three decades. A retired attorney, she provided expert testimony in many types of cases. She worked on many pieces of California legislation affecting survivors of domestic violence and their children. From 1988 to 2022, Ms. Lemon taught Domestic Violence Law and the Domestic Violence Field Placement at UC Berkeley’s School of Law. She authored the first textbook on Domestic Violence Law in 1996, now in its 6th edition with West. In 2012, Ms. Lemon co-founded the Family Violence Appellate Project, where she was the Legal Director and is now Of Counsel. She has presented many trainings to AFCC audiences and others.
This article provides a summary of 2023 published appellate opinions involving the initial issuance, modification, and renewals of domestic violence restraining orders. The summaries also cover cases involving custody and domestic violence, including the application of the Family Code section 3044 presumption against an award of custody to a parent found to have committed abuse. There is also one case involving the intersection of spousal support and domestic violence, and several cases involving dependency and criminal matters which involve domestic violence. Finally, the article covers statutes enacted in 2023, which became effective as of January 1, 2024, which involve domestic violence. A review of all of this new authority will ensure that California professionals involved in court connected custody matters are fully up to date on the current state of California family law as it applies to domestic violence.
I. 2023 Cases
Issuing & Modifying Domestic Violence Restraining Orders:
Vinson v Kinsey (2023) 93 Cal.App.5th 1166
Trial court denied DV Restraining Order (DVRO) in spite of long history of abuse: it did not qualify under Fam Code (FC) § 6320, definition of abuse. Court stated mother’s continuing to have contact with father after he threatened to kill her meant she was not afraid of him and his threats meant nothing to her. Plus she did not apply for DVRO right away after the last incident.
Appellate court reversed: 1. Trial court’s decision based on myths and unsupported assumptions about how DV victims/survivors are supposed to act. They have range of reactions to abuse. 2. DVRO statute does not require fear of bodily injury or that the petition be filed soon after abuse. Typical for survivors to leave 5-7 times before finally separating. 3. Statute requires considering totality of circumstances–i.e., history of abuse, rather than focusing on one incident.
Appellate court reversed: 1. Trial court’s decision based on myths and unsupported assumptions about how DV victims/survivors are supposed to act. They have range of reactions to abuse. 2. DVRO statute does not require fear of bodily injury or that the petition be filed soon after abuse. Typical for survivors to leave 5-7 times before finally separating. 3. Statute requires considering totality of circumstances – i.e., history of abuse, rather than focusing on one incident.
Hatley v Southard (2023) 94 Cal.App.5th 579
Trial court denied DVRO in spite of petitioner alleging attempted suffocation, emotional and sexual abuse, coercive control, etc., stating it wanted to hear if husband had hit her, discounting all other abuse. Told husband he didn’t have to testify. Spousal support denied.
Appellate court reversed: Wife had shown physical abuse, also disturbing her peace including coercive control (financial abuse and isolation). Spousal support can be issued even if no finding of abuse under DVPA.
Jan F. v Natalie F. (2023) 96 Cal.App.5th 583
Trial court denied DVRO in spite of history of physical abuse, father calling police 7 times in 3 weeks to request welfare checks and alleging child abduction, and his sending dozens of harassing texts and emails in short time to mother and her attorney. His goal in calling police was to find out her and children’s new confidential address. Told father he did not need to testify.
Reason for court’s denial: OK to call police if sincere concern about child welfare and 1st Amendment right to petition government, including police.
Appellate court reversed: Evidentiary hearing required with both parties testifying. Trial court did not state it didn’t believe mother, but that her allegations were not abuse. Wrong – baseless request for welfare checks = abuse under FC. No 1st Amendment right to harass someone.
Parris J. v Christopher U. (2023) 96 Cal.App.5th 108
Trial Court granted wife’s DVRO request based on various types of abuse and denied husband’s. Ordered husband to change beneficiary on $4 million life insurance policy he took out on wife from himself to charity of her choice: leaving him as beneficiary disturbed her peace as she was afraid he would kill her for the money.
Appellate court affirmed.
D.S. v A.S. (2023) 87 Cal.App.5th 926
Trial court granted wife’s DVRO request based on allegations of various types of abuse including firearms ban in spite of husband’s objection. No testimony from either party except wife’s affirming that allegations were true and correct.
Appellate court reversed: court should have conducted evidentiary hearing so it could probe parties and judge credibility. Due process requires notice and opportunity to be heard.
Malinkowski v Martin (2023) 93 Cal.App.5th 681
Divorce filed before Judge 1. DVRO request filed later before Judge 2, TRO issued. At trial setting conference Judge 1 modified TRO to allow brief & peaceful contact with children until Judge 2 ruled on DVRO, consistent with pre-existing court orders re visitation. Wife appealed: no notice that visitation would be dealt with at conference.
Appellate court affirmed: within trial court’s power to modify TRO without evidentiary hearing in order to avoid conflicting orders. Wife knew TRO would expire day of conference so knew it was possible custody or visitation might be modified. Also appeal dismissed since TRO expired so issue on appeal was moot.
A.F. v Jeffrey F. (2023) 90 Cal.App.5th 671
In middle of divorce, minor filed DVRO against father, with mother as Guardian ad Litem (GAL). FC allows 12+ year olds to file for DVRO without GAL or attorney. After meeting alone with minor, court found she needed attorney, appointed minor’s counsel. After father objected to mother being GAL, GAL changed to another adult. Child appealed appointment of minor’s counsel.
Appellate court reversed: Error to appoint minor’s counsel here. Minor may choose own attorney in DVRO case. If not competent to do so, GAL should hire attorney for minor who is not minor’s counsel so does not need to meet those requirements.
Zachary H. v Teri A.(2023) 96 Cal.App.5th 1136
Based on long history of abuse, adult son obtained DVRO against mother, including firearm prohibition. Mother, gun enthusiast, appealed arguing DVRO violated her 2nd Amendment right to bear arms.
Appellate court affirmed: 1. 2nd Amendment does not apply to people restrained by DVROs, who by definition have been found to be dangerous. 2. No Equal Protection violation since ok to differentiate between people subject to restraining orders and others. 3. Decision consistent with NY State Rifle & Pistol Assoc. v Bruen (2022) 597 US ___. (But Rahimi v Texas decision, pending in US Supreme Court in spring 2024, may affect this.)
Rivera v Hillard (2023) 89 Cal.App.5th 964
Trial court issued mutual restraining orders after finding each party had committed abuse against the other under DVPA while divorce pending. In TRO, wife falsely obtained kickout order of one of couple’s houses which divorce judge had assigned to husband. Wife moved into house, vandalized it, hacked into computers, stole property worth $250,000 from husband. After family court ordered her to pay restitution and she refused, hearing date set for restitution determination. After restitution hearing, wife appealed restraining order and restitution order.
Appellate court affirmed restraining order as appeal was untimely: window of time to appeal started when restraining order issued, not at end of restitution hearing.
Renewing Domestic Violence Restraining Orders:
Michael M. v Robin J. (2023) 92 Cal.App.5th 170
Mother obtained 3-year DVRO based on years of various types of abuse and moved to new confidential address. New address listed on father’s litigation papers. Mother filed for renewal of DVRO 4 days before it expired. She testified that she did this in response to father’s having found her new address and that she was afraid for herself and children, given father’s past abuse of herself and them, including his ongoing texting her directly rather than through Talking Parents platform.
Father’s attorney asserted that mother had been arrested for DUI with children in the car, prompting father to request change in custody and mother to retaliate against him for this and for not paying child support by filing for renewal of DVRO. Father’s attorney also stated that any possible DVRO violations occurred long ago and they did not constitute grounds for renewal. Mother stated she was still afraid because after DVRO was issued father put knife to her throat while children were present as well as telling police during his arrest that he intended to violate Emergency Protective Order and did not care about ramifications. She also said he had texted directly or called her many times, including only 6 days ago.
Trial court denied renewal, stating there needed to be recent violation before DVRO could be renewed and that mother sought renewal out of retaliation. It held mother’s fear was not reasonable due to lack of recent violations other than one recent text message, which it held was “not really a violation.”
Appellate court reversed. 1) Trial court committed reversible error in requiring recent abuse or recent violation of DVRO before renewal appropriate. Renewal standard in FC § 6345 is “reasonable apprehension of future abuse,” not recent abuse. 2) Also abused its discretion in finding that direct text message from father was not violation, since content of text was calling mother names rather than dealing with emergency regarding children. 3) And error to find that mother sought renewal based on retaliation due to timing of her request and thus rejecting her testimony re fear. And even if she filed partly in retaliation, mere existence of retaliatory motive would not negate compelling evidence that mother had reasonable basis to fear father. “Anger and fear are not mutually exclusive; they often go hand in hand.”
Leahy v Peterson (2023) 98 Cal.App.5th 239
This case involves a civil harassment order. A police officer and wife obtained 3-year Civil Harassment Order (CHO) against man he arrested for stalking a woman. After conviction defendant stalked officer and his wife obsessively. Officer and wife forced to move, officer started carrying gun at all times. CHO renewed for 5 years, then another 5 years. Stalker appealed second renewal arguing no new harassment by that point.
Appellate court reversed. CHO renewal standard different from DVRO standard: CHO requires showing reasonable probability that harassment will be repeated in future, i.e., evidence of new harassment since first CHO issued. Here there was no such evidence. Stalker filing federal lawsuit against officer was not new harassment since litigation is protected activity.
Custody:
Destiny C. v Justin C. (2023) 87 Cal.App.5th 763
Court found both parents committed DV against each other. Awarded joint legal and physical custody of 7 year old child because DV took place over 5 years before custody trial in 2021 and FC § 3044’s presumption against custody to batterers applies only if DV within last 5 years. Mother appealed, arguing DV was within 5 years before divorce filed in 2015 even if not within 5 years of custody trial in 2021 so § 3044 should apply.
Appellate court affirmed: 1) FC § 3044 presumption applies only if DV within 5 years before trial or hearing where finding of DV is made. 2) Mother’s failure to object to proposed Statement of Decision finding DV occurred more than 5 years before DV hearing waived her right to appeal on that basis. 3) Doctrine of implied findings also supports trial court’s joint custody decision where no SOD or transcript shows error. Trial court apparently did not find witness credible who testified DV occurred 3 or 4 years prior to custody trial.
[Note: Even if § 3044 does not apply, FC § 3011 does and has no time limit — as part of determining best interests of child court must consider any allegations of DV, child abuse, substance abuse, or elder abuse. And court must state reasons on the record or in writing if awards custody to alleged abuser.]
Johnston-Rossi v Rossi (2023) 88 Cal.App.5th 1081
In dissolution, parties awarded joint custody. 3 years later mother obtained DVRO against father protecting herself and children, given permission to relocate to Canada, later NY. Father had regular visitation. When children were teens, both parents sought to modify custody/visitation. Children said did not want to see father, who accused mother of parental alienation. After evidentiary hearing, trial court #1 ordered more counseling for children, more visitation for father, said ok for father to enroll children in week-long program such as Family Bridges or Turning Point during summer visitation in Los Angeles.
Trial court #2 allowed father to enroll children in Family Bridges therapy program, including banning children’s contact with mother for at least 90 days, children to live with father, maybe moving them from NY to LA during this time since father lived in LA. Denied mother’s request for evidentiary hearing about whether order was in best interest of children. Mother appealed, arguing no showing of changed circumstances, required before order modified.
Appellate court reversed: Changed circumstances required before custody/visitation modified, trial court must hold evidentiary hearing before making such a finding.
Willis v Costa-Willis (2023) 93 Cal.App.5th 595
Dissolution order: joint legal and physical custody, 50/50 timeshare. 2 months later mother sought DVRO based on harassment but did not mention custody. Trial court found father committed DV by harassing mother, ordered sole custody to mother based on § 3044. Continued 50/50 timeshare, characterizing this as sole custody to mother and visitation to father due to § 3044 presumption against custody to batterers. Mother appealed, arguing father’s 50% timeshare violated § 3044.
Appellate court reversed: 3044 never arose since neither party requested custody or mentioned 3044 though either party could request change in custody in future.
Spousal Support:
Gilbert-Valencia v McEachen (2023) 98 Cal.App.5th 520
Each party filed TRO, husband dismissed his with prejudice after hearing pursuant to agreement with wife. At later hearing on spousal support, trial court refused to watch video of wife’s alleged DV against husband, saying not DV hearing. Husband appealed court’s refusal to watch video.
Appellate court reversed. FC § 4320(i) provides spousal support factors include considering history of DV.
(Note: This part of statute was enacted due to cases in which victim/survivor, higher earning party, was ordered to pay support to abuser.)
Juvenile Court:
In re I.E. (2023) 91 Cal.App.5th 683
4 year old child removed from mother after mother admitted child saw mother hit in face by presumed father, plus mother abused marijuana and methamphetamine. Child said adults fought all the time. Mother inconsistent in participating in reunification services, came to visit with visible bruises, hit child during one visit causing child to scream and cry. After 12 months, mother missed some tests, had some positive drug tests, therapist said mother not benefiting from therapy and needed more. Child said wanted to live with foster mother but visit with biological mother. Mother’s visits cut to monthly, she entered residential substance abuse program. Mother’s services terminated. She objected to parental rights being terminated so child could be adopted by foster mother, argued parental benefit exception to termination.
Appellate court affirmed trial court: parental benefit exception did not apply where mother inconsistent in visiting, did not prove substantial and positive relationship with child, and child’s strong consistent wishes to live with foster mother favor adoption.
In re S.F. (2023) 91 Cal.App.5th 696
Mother of baby released from W & I § 5150 hold; while drunk brandished knife toward maternal grandmother and took baby. Father in NY but stayed in touch and sent support. CPS filed dependency petition against both parents, said father had anger management issues. Mother said DV was mutual. Both said they were clean and sober until father’s threats via text to hurt mother and grandmother caused mother to start using again. Juvenile court removed child from father’s custody, he appealed.
Appellate court reversed jurisdictional finding making child dependent of court. Father tested negative for drugs, said it had been 2 years since he abused them. No substantial evidence that he used drugs, had anger management problem or posed risk to child. Past DV incidents outside child’s presence, no injuries, long ago. Trial court had no details re alleged threatening texts to mother.
(Note that appellate court correctly distinguishes between anger management and DV programs. Anger management programs are not designed to deal with DV and do not qualify as certified Batterer Intervention Programs under Penal Code § 1203.097.)
Criminal:
Counterman v Colorado (2023) 600 US 66; 143 S.Ct. 2106 (U.S. Supreme Court)
(Not a DV case.) Defendant convicted of stalking with serious emotional distress and harassment via Facebook of female singer whom he never met. State did not introduce evidence showing defendant’s awareness of his statements’ threatening character, introducing only statements themselves, which included “Die.”
Supreme Court reversed:
To convict defendant under Colorado stalking statute prohibiting communication causing serious emotional distress, State not only had to show 1) that reasonable person would understand defendant’s statements as threats (objective prong), but also had to show 2) awareness on defendant’s part that statements could be understood that way in order to satisfy reckless mental state required by 1st Amendment (subjective prong).
Person acts “recklessly” when consciously disregards substantial and unjustifiable risk that conduct will cause harm to another; that standard involves insufficient concern with risk, rather than awareness of impending harm. In threats context, “recklessness” means that speaker is aware that others could regard statements as threatening violence and delivers them anyway. Subjective standard required for true threats, lest prosecutions chill too much protected, non-threatening expression.
People v Fuentes (2023) 87 Cal.App.5th 1286
Defendant pled guilty to felony DV of pregnant girlfriend, agreed to 1 year jail + 3 years probation. While released pending sentencing and subject to DV criminal protective order ordering him to have only peaceful contact with girlfriend, defendant yelled at her for 10 minutes, withheld her phone & internet access. She went to Family Justice Center for help. Court changed sentence to 9 years prison since defendant violated order. Defendant argued on appeal that “disturb the peace” in order was unconstitutionally vague.
Appellate court affirmed. Penal Code definition of disturbing the peace (disruption of public order via violence or inciting violence using loud noise, etc.) is narrower than FC definition, but FC definition applied here since this was DV relationship and order included “DV” in title of form. DV Prevention Act in FC: disturbing the peace means conduct that destroys mental or emotional calm of other party, which defendant did.
People v Bocanegra (2023) 90 Cal.App.5th 1236
Defendant broke window, fired assault rifle into house of friend who slept with defendant’s wife. Convicted of several gun crimes. He appealed, argued CA Penal Code section banning possession of assault weapons is unconstitutional. Cited NY State Rifle Assoc v Bruen (US Supreme Court, 2022)(holding NY gun statute unconstitutional, violated 2nd Amendment).
Appellate court affirmed. Held: Bruen does not affect validity of CA gun statutes. 2nd Amendment does not permit people to use guns in public to terrorize others, assault weapons are weapons of war, not self-defense or hunting.
(Note: As mentioned previously, US Supreme Court decision in Rahimi due by June 2024 may affect many statutes and court decisions regarding firearms.)
II. Statutes Enacted in 2024 and Effective as of January 1, 2024
Civil & Family Law:
SB 331 (Rubio) (Piqui’s Law) – Keeping Children Safe from Family Violence Act: Father murdered child during joint physical custody time after mother’s request for DVRO and objection to custody order were denied.
- Mandates initial and annual training for judges and other professionals employed by courts: GALs, custody evaluators, mediators, child custody recommending counselors, etc. Topics include DV, child sexual abuse and coercive control.
- Prohibits family reunification treatments (e.g., Family Bridges, Turning Point).
- SB 599 (Caballero) – court must consider ordering virtual visitation if determines limitations are necessary; if party staying at DV shelter, court must consider visitation that is not in person given confidential shelter location.
- Court required to approve custody/visitation stipulations only if in best interest of children, not simply rubber stamp them.
- Court buildings may serve as supervised visitation and exchange locations, court may designate employees and contractors to provide these services.
AB 933 (Aguiar–Curry) – Protecting Survivors from Weaponized Defamation Lawsuits Act: protects survivors of sexual assault, harassment, discrimination from defamation lawsuits by defendants who are retaliating against survivors for speaking publicly about their experiences
- Claims of abuse made in good faith are a form of protected speech
- Includes claims based on abuse in workplace, home, or school setting
AB 1418 (McKinnor) – builds on nuisance laws prohibiting eviction for calling police.
- Cities can’t require landlords to do criminal background checks on tenants or to penalize tenants for contact with police, or because tenant associated with someone who had contact with police or a conviction.
- (Note: Some DV survivors have criminal records due to abuse and/or may be unable to keep their abusers away from where they live. This statute will help them obtain housing and keep it.)
Criminal Law:
AB 60 (Bryant) – requires victim notification of alternative restorative justice programs via resource card
AB 44 (Ramos) – CLETS (Ca. Law Enforcement Telecommunications System) must be accessible to police for federally recognized tribes in CA. Part of tribal sovereignty and right to prosecute non-Indians for certain crimes committed in Indian country.
SB 290 (Min) – provides that victims of DV, Sexual Assault, stalking, human trafficking, or elder abuse must be given free copies of photos & 911 call records related to police report, not just the report itself
AB 467 (Gabriel) – court may modify Criminal Protective Order during its duration, which may be up to 10 years if DV, human trafficking, gang violence, or sex offense
AB 1497 (Haney) – allows resentencing for victims of DV, sexual violence & trafficking if those crimes were related to the offense victim convicted of (previously law applied only to non-violent convictions, new law applies to all convictions)
- affirmative defense if crime committed due to being victim of above crimes
- arrest and conviction records of these victims can be sealed
- prohibits consecutive terms in sentencing if defendant was victim of these crimes or suffered childhood trauma or was youth at time of crime