Family Law Attorney in California

S.M., Plaintiff and Appellant, v. E.P., Defendant and Respondent.
COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT, DIVISION ONE

At the request of a child’s mother, the trial court issued a domestic violence restraining order pursuant to Fam. Code, § 6300, against the child’s father. The trial court also issued a minute order stating that it would decline to exercise jurisdiction over paternity and custody matters because a custody action had been filed in another state. The parties had a heated argument when the mother decided to leave the state with the child. The mother called the police and said that the father had threatened to kill her. The father was taken to jail because he was very irate and agitated. It was undisputed that no physical violence had occurred. The trial court stated that the restraining order was not based on the alleged death threat, but on the father’s refusal to stop arguing with the mother, which the trial court characterized as “badgering.” The trial court further stated that the restraining order did not mean the father was inappropriate for custody. Father appealed.

ISSUES:
Whether trial court abused its discretion in issuing the restraining order because there was no showing that he engaged in domestic violence against Mother.

DISCUSSION:

Pursuant to the Domestic Violence Prevention Act (DVPA) (§ 6200 et seq.), a court may issue a protective order to restrain any person for the purpose of preventing a recurrence of domestic violence and ensuring a period of separation of the persons involved. (§§ 6220, 6300.) Specifically, section 6300 provides, “An order may be issued under this part, with or without notice, to restrain any person for the purpose of preventing a recurrence of domestic violence and ensuring a period of separation of the persons involved, if an affidavit or, if necessary, an affidavit and any additional information provided to the court pursuant to Section 6306, shows, to the satisfaction of the court, reasonable proof of a past act or acts of abuse.” ‘[A]buse’ means any of the following:  (a) Intentionally or recklessly to cause or attempt to cause bodily injury (b) Sexual assault (c) To place a person in reasonable apprehension of imminent serious bodily injury to that person or to another (d) To engage in any behavior that has been or could be enjoined pursuant to Section 6320.” (§ 6203). The  behaviors outlined in section 6320 include “molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning, including, but not limited to, annoying telephone calls as described in Section 653m of the Penal Code, destroying personal property, contacting, either directly or indirectly, by mail or otherwise,  coming within a specified distance of, or disturbing the peace of the other party, and, in the discretion of the court, on a showing of good cause, of other named family or household members.”  The Court concluded that neither the trial court’s findings, nor the evidence in the record, establish that Father engaged in conduct that placed Mother in reasonable fear of serious bodily injury or that he engaged in a type of behavior identified in section 6320.  The trial court’s description of Father’s behavior does not support a finding that Father engaged in abuse.  The trial court’s issuance of a restraining order under these circumstances is not authorized under section 6300.

JUDGMENT:

The trial court’s May 4, 2009 restraining order was reversed.

Disclaimer:

These summaries are provided by the SRIS Law Group.  They represent the firm’s unofficial views of the Justices’ opinions.  The original opinions should be consulted for their authoritative content

Originally published here.