Does Fair Have Anything to Do With It?

• Publication year: 2018
• Author: Michael G. Loeffler

Does Fair Have Anything to do With It?

Michael G. Loeffler

Michael Loeffler has practiced family law since 1975. He was a Mental Health Hearing Officer for fifteen years. He was the head

of the Area VI Developmental Disabilities Board for ten years. He graduated with highest honors from the University of California, Davis, where he was a member of Phi Beta Kappa, and from the University of The Pacific, McGeorge School of Law, where he attained membership in The Traynor Society. He is also a second degree black belt in aikido and a former marathon runner.

Despite family law courts being courts of equity, the California Family Code is not based on fairness. Clint Eastwood once said, "Fair's got nothing to do with it."¹ Perhaps that is as it should be.

This article has two main points:

• In some instances, the courts' current practices in administering the Domestic Violence Protection Act (DVPA) end up with a result that one might consider unfair from an economic standpoint.
• Additionally, the same court practices sometimes result in orders that are not in the best interests of children.

Both the Family Code and case law emphasize that the court's first priority is to ensure "the best interests of the child" and that this should normally include frequent and continuing contact by both parents.² Additionally, there is a strong statutory intent in taking appropriate steps to stop domestic violence. In recent years, the term "domestic violence" has been expanded. "Domestic violence" under the Family Code, unlike the Penal Code, is defined as, among other actions, anything that "disturbs one's emotional calm."³

The reality is that these interests sometimes conflict in DVPA proceedings. As a result, occasionally the family law courts make orders that follow the "law of unintended consequences:"⁴ orders that are contrary to children's best interests, financially disastrous, and contrary to law.

Unfortunately, parties who are representing themselves, as well as family law attorneys, sometimes use requests for domestic violence protection orders in a way other than they were intended: a weapon that, while protecting against domestic violence, is also intended to place the other party in an enormous disadvantage at the very outset.

In practice, it takes little to have an ex parte temporary restraining order issued. Most judges are very liberal in granting temporary orders. This is understandable. No judge wants to be in a newspaper headline, "SPOUSE COMMITS MURDER AFTER JUDGE REFUSES TO ISSUE TEMPORARY RESTRAINING ORDER".

However, it is not necessarily correct.

Declarations in family law matters are supposed to adhere to certain standards: they must be "based on statements of fact based on the declarant's personal knowledge."⁵ In practice, though, judges typically are not concerned with this when ruling on ex parte Domestic Violence Restraining Order applications: their main concern is to protect the safety of the "persons to be protected." Too often, the supporting declaration that is part of the Request for Domestic Violence Restraining Order (DV-100) is replete with hearsay, opinion, speculation, legal arguments, and conclusions.⁶

Further, in family law matters, declarations are not automatically in evidence, and the court is required to rule on timely objections at the hearing.⁷ Again, though, this does not apply to ex parte applications. In DVPA procedures, contrary to ex parte orders requested under other sections of the Family Code,⁸ the other party does not have the opportunity to object before the court considers these orders (Temporary Restraining Orders [DV-110]).

What is the result of all this?

Family Code section 3064(a) states that "[t]he court shall refrain from making an order granting or modifying a custody order on an ex parte basis unless there has been a showing of immediate harm to the child or immediate risk that the child will be removed from the State of California." In reality, though, the person applying for the Temporary Restraining Order, which includes custody and visitation orders prohibiting the other party from having any visitation or contact with the children (CLETS-TRO; Judicial Council Form DV-110), has a good chance of obtaining those orders: far more than one would think by reading the statute.⁹

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DV-110 temporary restraining orders only last until the hearing date. The hearing is required to be within twenty-one to twenty-five days, as compared with twenty days after other ex parte temporary child custody orders.¹⁰ In reality, though, in some counties—including those where a particular case is assigned to one judge for all purposes—the hearing is often little more than the judge's continuing the...