Ins and Outs of the Developing Dvpa Case Law

• Publication year: 2019
• Author: Janet L. Frankel, CFLS

Ins and Outs of the Developing DVPA Case Law

Janet L. Frankel, CFLS

In 1992, Janet Frankel opened her private law practice. In 2004, Janet became certified as a family law specialist by the CA State Bar Board of Legal Specialization. She mentors attorneys who accept pro bono family law matters through the JDC Program of BASF, and mentors law school students interested in family law. In 2005, Janet co-authored Dissolution Strategies, published by CEB, and she was selected as a Northern California Super Lawyer that same year. Janet regularly serves as a Judge pro tem in the Unified Family Courts of the San Francisco Superior Court. Janet has been an Adjunct Professor at SF Law School (Alliant University) since 2006, teaching Community Property and Mediation. She is a past Chair of the BASF Family Law Section. Janet also volunteers monthly in KALW's public service radio program "Your Legal Rights," where listeners call in to pose their legal questions to certified specialists off the air.

The Domestic Violence Prevention Act (DVPA) enjoins a large range of abusive behavior, as it should. Domestic violence is a serious societal problem, whether it is ongoing verbal abuse or physical attacks with weapons. There are long-term ill effects on the development of young children who witness domestic abuse. Violence in our society is an ever-increasing problem - just look at recent gun violence incidents around our state and the nation.

Our family courts and practitioners often have difficulty when adjudicating or litigating requests for domestic violence restraining orders. The March 2019 Orange County case of N.T. v. H.T. is just one recent example.¹

In N.T. v. H.T., the trial court denied wife's request for a permanent restraining order, even though husband had violated the temporary restraining order. Husband admitted to the violations of the TRO but explained that his behavior was intended to bring his family back together. The trial court noted that husband's "technical" violations of the TRO had not caused physical injury, and committed clear error when it stated it was "not aware of any authority that says a violation of a TRO is in and of itself domestic violence."² The Fourth District Court of Appeal reversed because, pursuant to Family Code section 6203(a)(4), engaging in enjoined behavior is abuse for the purposes of the DVPA. Why didn't the trial court correctly apply the plain language of the DVPA?

In Lugo v. Corona,³ the trial court denied wife's request for domestic violence restraining order on the basis that there was an existing criminal protective order in place, which the court of appeal found was an erroneous basis for denying the restraining order. The existence of a criminal protective order is not a bar to the issuance of a domestic violence restraining order, and criminal and civil protective orders may coexist.⁴ The language in the Penal Code and the Family Code is permissive, not mandatory. The problem was that the trial court did not make any findings about whether there was sufficient evidence of domestic violence - or "abuse" - to warrant a domestic...