Recent Developments in California Domestic Violence Case Law

• Jurisdiction: California,United States
• Citation: Vol. 38 No. 4
• Publication year: 2016
• Author: Erin Smith, Cory D. Hernandez, & Helen Wang
• topic: Family Law,Civil Procedure

Recent Developments in California Domestic Violence Case Law

Erin Smith, Cory D. Hernandez, & Helen Wang¹

Erin Smith is the Executive Director and a co-founder of Family Violence Appellate Project. Over the last 4-1/2 years, Erin has directed the organization from start-up to established legal services provider and an important part of the statewide network of service providers working to end domestic violence in California. Erin has been involved in almost all of the 27 new published cases on domestic violence issues in which FVAP has been involved since 2012. Before co-founding FVAP, Erin was a family law attorney, winning a unanimous appellate verdict in a child support case, and before that a civil litigator. She attended UC Berkeley School of Law, where she graduated order of the coif in 2004.

Cory Hernandez is a third-year student at UC Berkeley School of Law. Cory has served as a law clerk for FVAP for two terms after spending a term as a law clerk at the Family Violence Law Center in Oakland, and another term at the East Bay Community Law Center in Berkeley. After graduation, Cory plans to continue supporting and advocating on behalf of survivors of domestic and/or sexual violence. Prior to law school, Cory obtained a B.S. in political science and American studies and an M.S. in political science from MIT

Helen served as a law clerk for FVAP in the summer of 2016. After obtaining her LLB in China, she came to the United States seeking knowledge in the practice of common law. During her three years of school life at the Indiana University Maurer School of Law, she has developed a strong interest in family and children's law. She currently works as a domestic relations mediator at the Viola J. Taliaferro Family and Children Mediation Clinic, helping indigent people settle various family disputes.

Introduction

When the Family Violence Appellate Project (FVAP) was founded in 2012, there were few published cases in California related to domestic violence (DV). Four years later, there have been more than thirty additional published cases relating to domestic violence. Most of those cases were prosecuted, defended, and/or requested to be published by FVAP, the only organization in California dedicated to appealing cases on behalf of domestic violence survivors and their children.

The significant increase in DV case law through the efforts of FVAP and others highlights the need for all family law practitioners to actively keep abreast of new developments in this area of law. This article discusses some recent developments and trends in California DV case law, with a primary focus on 2015 and the first half of 2016, although it is not intended to be an exhaustive summary of cases during that time.

Three themes emerged in the DV case law over the last year or so. First, the appellate courts continued to elaborate on the standard to renew a domestic violence restraining order (DVRO). Second, several decisions further explained what constitutes "abuse" under the Domestic Violence Prevention Act (DVPA) (Cal. Fam. Code § 6200 et seq.), recognizing that "abuse" is much more than physical violence. Third, several cases explored a parent's role in protecting children from abuse by the other parent, including a pair of juvenile dependency cases in which the appellate courts reversed juvenile courts' findings that DV survivors "failed to protect" their children under California Welfare & Institutions Code §§ 300(a) & (b)(1). One particularly noteworthy case, Perez v. Torres-Hernandez, 1 Cal. App. 5th 389 (2016), touches on all three of these areas.

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1. Domestic Violence Restraining Order Renewals

Under Family Code section 6345(a), a petitioner may request a renewal of a DVRO "at any time within three months before the expiration of the orders." The DVRO may be renewed "either for five years or permanently, without a showing of any further abuse since the issuance of the original order." Id. In two recent cases brought by FVAP, the First District Court of Appeal overturned trial courts' refusals to renew DVROs and in so doing, recognized the broad protective purpose of the DVPA.

In Perez, the appellate court reversed the trial court's denial of the petitioner's requests to renew her DVRO and to modify it to include the parties' children. Perez, 1 Cal. App. 5th at 392. The petitioner had sought a three-year DVRO in 2010 to protect herself and the parties' two daughters after enduring a ten-year abusive relationship with the respondent. Id. When it granted the DVRO, however, the trial court included only the petitioner as a protected party, granting her sole physical custody with some visitation for the respondent. Id. at 392-393. The petitioner alleged that respondent began abusing the children during his visitation, but in 2011 the court denied the petitioner's request to modify the DVRO to include her three children (including one from a prior relationship) as protected parties. Id. at 393-394. In addition to allegedly abusing the children, the respondent violated the DVRO by calling and texting the petitioner multiple times, using threatening and harassing language and causing the petitioner enormous fear—such that in 2013 she requested a permanent renewal of the DVRO, again seeking protection for her three children. Id. at 394-395. The trial court, however, did not find "enough to extend the DVRO," as it incorrectly believed that a renewal of a DVRO required actual or threatened violence, and that evidence of child abuse was not relevant to petitioner's renewed DVRO. Id. at 395.

The appellate court reversed and remanded, holding that for DVRO renewals, "[t]he key consideration for the court is not the type or timing of...