DVRO - Other Important Issues that Must be Addressed

A.??? Child Custody – Family Code §3044 Presumption.

In Domestic Violence cases where the parties share minor children, there is a presumption (Explained below) that the victim of domestic violence will have sole legal and physical custody of the minor children. To trigger the presumption, the victim must put custody at issue when filing for the DVRO.[1] Therefore, to be safe, the party must, at a minimum, attach Judicial Counsel Forms DV-105 (Child Custody and Visitation Orders) and DV-140 (Child Custody and Visitation Order) and mark the Custody and Visitation section on the DV-100.

Under Family Code §3044, the rebuttable presumption holds that placing the minor children with the party perpetrating an act of domestic violence is not in the children’s “best interests.” Family Code § 3044(a) states:

"Upon a finding by the Court that a party seeking custody of a child has perpetrated domestic violence within the previous five years against the other party seeking custody of the child, or against the child or the child's siblings, or against a person in subparagraph (A) of paragraph (2) of subdivision (a) of Section 3011 with whom the party has a relationship, there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child, under Sections 3011 and 3020. This presumption may only be rebutted by a preponderance of the evidence."

To overcome the presumption outlined in Family Code § 3044(a) the perpetrator of domestic violence[2] must satisfy the factors set out in Family Code §3044 (b) set forth below:

?"To overcome the presumption set forth in subdivision (a), the Court shall find that paragraph (1) is satisfied and shall find that the factors in paragraph (2), on balance, support the legislative findings in Section 3020.

(1)???? The perpetrator of domestic violence has demonstrated that giving sole or joint physical or legal custody of a child to the perpetrator is in the best interest of the child pursuant to Sections 3011 and 3020. In determining the best interest of the child, the preference for frequent and continuing contact with both parents, as set forth in subdivision (b) of Section 3020, or with the noncustodial parent, as set forth in paragraph (1) of subdivision (a) of Section 3040, may not be used to rebut the presumption, in whole or in part.

(2) Additional factors:

(A)???? The perpetrator has successfully completed a batterer’s treatment program that meets the criteria outlined in subdivision (c) of Section 1203.097 of the Penal Code.

(B)???? The perpetrator has successfully completed a program of alcohol or drug abuse counseling, if the Court determines that counseling is appropriate.

(C)???? The perpetrator has successfully completed a parenting class, if the Court determines the class to be appropriate.

(D)???? The perpetrator is on probation or parole, and has or has not complied with the terms and conditions of probation or parole.

(E)????? The perpetrator is restrained by a protective order or restraining order, and has or has not complied with its terms and conditions.

(F)????? The perpetrator of domestic violence has committed further acts of domestic violence.

(G)???? The Court has determined, pursuant to Section 6322.5, that the perpetrator is a restrained person in possession or control of a firearm or ammunition in violation of Section 6389.

?(Emphasis added.)

The case law further defines and, in some cases, limits the use of the presumption as set forth below:

·???????? Issuance of a domestic violence restraining order under Family Code § 6300 was error because the argumentative behavior that the trial court indicated was the basis for the restraining order was not abuse under Family Code §§ 6203, 6211(a), (b), 6320. Moreover, the trial court misinterpreted its authority by failing to recognize that the restraining order would necessarily trigger the presumption against custody in Family Code § 3044. S.M. v. E.P. (Cal. App. 4th Dist. 2010), 184 Cal. App. 4th 1249.

Presumption Does Not Apply if DVRO is filed With No Custody Order Requested.

·??????? The Presumption of Family Code §3044(a) does not arise when neither party, as part of a DVRO proceeding, is seeking custody or a modification of the custody. In re Marriage of Willis & Costa-Willis (Cal. App. 4th Dist. 2023), 311 Cal. Rptr. 3d 175.

No Actual Need for the Issuance of a Restraining Order for the Presumption to Apply.

·???????? Because the statutory presumption that it would be detrimental to the children’s best interests to award joint legal custody applies whenever there is a finding that one parent committed an act of domestic violence against another parent, a child, or a child’s siblings within the past five years, whether a restraining order is issued as a result of the domestic violence has no bearing on the applicability of the statutory presumption to the issue of custody. In re Marriage of Fajota (Cal. App. 4th Dist. 2014), 230 Cal. App. 4th 1487.

Expiration of a Restraining Order does not Satisfy the Presumption.

·???????? The trial court could not award sole or joint legal or physical custody to an offending parent, even though the one-year domestic violence restraining order had expired. Celia S. v. Hugo H. (Cal. App. 4th Dist. 2016), 207 Cal. Rptr. 3d 756.

The Court Does Not Need To Specify Each Finding to Overcome the Presumption.

·???????? The trial court sufficiently stated its reasons for ruling that a father rebutted the presumption of detriment due to domestic violence, even though it did not state its reasons about each factor on the record, because the Court of Appeal was able to review the statement of decision meaningfully. Discussion of each of the statutory factors is not mandated. S.Y. v. Superior Court (Cal. App. 4th Dist. 2018), 240 Cal. Rptr. 3d 137.

B.???? Child Support.

Many times, the person who has been the victim of domestic violence either has left the family residence or the perpetrator has left the residence. In many of those instances, the victim needs financial help for either themselves or for themselves and the party’s minor children. In these cases, the Petitioner should request support in their moving papers by marking the child support section on the Judicial Counsel Form DV-100 and attaching Form FL-150 (Income and Expense Declaration).

The perpetrator would only be responsible for paying child support for their children, not for the children of other relationships, unless they are the putative father.

Family Code § 6341 states in pertinent part:

(a) If the parties are married to each other and no other child support order exists or if there is a presumption under Section 7611 that the respondent is the natural father of a minor child and the child is in the custody of the Petitioner, after notice and a hearing, the Court may, if requested by the Petitioner, order a party to pay an amount necessary for the support and maintenance of the child if the order would otherwise be authorized in an action brought pursuant to Division 9 (commencing with Section 3500) or the Uniform Parentage Act (Part 3 (commencing with Section 7600) of Division 12). When determining whether to make any orders under this subdivision, the Court shall consider whether failure to make any of these orders may jeopardize the safety of the Petitioner and the children for whom child support is requested, including safety concerns related to the financial needs of the Petitioner and the children. The Judicial Council shall provide notice of this provision on any Judicial Council forms related to this subdivision.

(b) An order issued pursuant to subdivision (a) of this section shall be without prejudice in an action brought pursuant to the Uniform Parentage Act (Part 3 (commencing with Section 7600) of Division 12).

C.??? Spousal Support.

The Petitioner should request support in their moving papers by marking the spousal support section on the Judicial Counsel Form DV-100 and attaching Form FL-150 (Income and Expense Declaration).

Family Code § 6341 states in pertinent part:

(c) If the parties are married to each other and no spousal support order exists, after notice and a hearing, the Court may order the respondent to pay spousal support in an amount, if any, that would otherwise be authorized in an action pursuant to Part 1 (commencing with Section 3500) or Part 3 (commencing with Section 4300) of Division 9. When determining whether to make any orders under this subdivision, the Court shall consider whether failure to make any of these orders may jeopardize the safety of the Petitioner, including safety concerns related to the financial needs of the Petitioner. The Judicial Council shall provide notice of this provision on any Judicial Council forms related to this subdivision.

A person who is convicted of domestic violence may not be entitled to spousal support.

·???????? A wife who had been convicted of stalking her husband did not overcome the rebuttable presumption against an award of support to a spouse convicted of domestic violence because she did not produce any documented evidence to support her contention that the husband committed domestic violence against her, electing to present her case solely through her own testimony. In re Marriage of Brewster & Clevenger (Cal. App. 6th Dist. 2020), 45 Cal. App. 5th 481.

D.??? Restitution.

Under Family Code § 6342 restitution may be awarded as follows:

(a) After notice and a hearing, the Court may issue any of the following orders:

(1) An order that restitution be paid to the Petitioner for loss of earnings and out-of-pocket expenses, including, but not limited to, expenses for medical care and temporary housing, incurred as a direct result of the abuse inflicted by the respondent or any actual physical injuries sustained from the abuse.

(2) An order that restitution be paid by the Petitioner for out-of-pocket expenses incurred by a party as a result of an ex parte order that is found by the Court to have been issued on facts shown at a noticed hearing to be insufficient to support the order.

(3) An order that restitution be paid by the respondent to any public or private agency for the reasonable cost of providing services to the Petitioner required as a direct result of the abuse inflicted by the respondent or any actual injuries sustained therefrom.

(b) An order for restitution under this section shall not include damages for pain and suffering.

·???????? In Rivera v. Hillard the family court correctly ordered restitution in favor of a husband under the Domestic Violence Prevention Act because the order was consistent with general restitution principles, including being limited to documented, pecuniary measurable losses. The Court did not exceed its authority in awarding restitution for items from the husband's residence confiscated or damaged by the wife, as his losses were incurred as a direct result of the abuse. The restitution order was issued after the wife failed to avail herself of the opportunity the Court gave her to return the money and property she had taken from the husband's residence in violation of the Act, and the Court conducted a hearing on valuation. Rivera v. Hillard (Cal. App. 1st Dist. 2023), 306 Cal. Rptr. 3d 493.

E.???? Personal Property / Move Out Order / Exclusion from Dwelling.

Family Code §6321 states:

(a)? The Court may issue an ex parte order excluding a party from the family dwelling, the dwelling of the other party, the common dwelling of both parties, or the dwelling of the person who has care, custody, and control of a child to be protected from domestic violence for the period of time and on the conditions the Court determines, regardless of which party holds legal or equitable title or is the lessee of the dwelling.

(b)? The Court may issue an order under subdivision (a) only on a showing of all of the following:

(1)? Facts sufficient for the Court to ascertain that the party who will stay in the dwelling has a right under color of law to possession of the premises.

(2)? That the party to be excluded has assaulted or threatens to assault the other party or any other person under the care, custody, and control of the other party, or any minor child of the parties or of the other party.

(3)? That physical or emotional harm would otherwise result to the other party, to any person under the care, custody, and control of the other party, or to any minor child of the parties or of the other party.

Further Family Code § 6342.5 states in pertinent part:

(a) After notice and a hearing, the Court may issue an order determining the use, possession, and control of real or personal property of the parties during the period the order is in effect and the payment of any liens or encumbrances coming due during that period.

(b) The order described in subdivision (a) may include a finding that specific debts were incurred as the result of domestic violence and without the consent of a party. For purposes of this subdivision, the acts that may support this finding include, but are not limited to, the crimes proscribed by Section 530.5 of the Penal Code. This finding does not affect the priority of any lien or other security interest.

The following case further defines the statute and explains when a court should order an abuser to move out of the home as part of a restraining order:

·???????? In Nicole G. v. Braithwaite a survivor of domestic violence requested that her abuser move out of the home as part of her domestic violence restraining order. Still, her abuser claimed that because the survivor had already moved out of their shared residence, he should not have to move out. The Court used the abuser's past acts of abuse and stalking to determine that further harm would have come to the survivor if a move-out order had not been made, and a survivor should not have to permanently vacate their residence because they previously moved in order to flee abuse. Nicole G. v. Braithwaite (2020) 49 Cal.App.5th 990.

CASE NOTE: A few years back, I had a case where a young woman was preying on men. She was attractive and would get into dating relationships with them, moving into their houses almost immediately. She would then file for a DVRO against them, with a move-out order, using false allegations of abuse to stay in the house as long as she could without paying rent. The cases never went to trial because she would leave and move on to the next victim.

F.???? Other Protected Parties.

·???????? In Tanguilig v. Valdez the restrained party argued that it was inappropriate that the restraining order against him also protected additional family and household members of the person who asked for the restraining order. The Court of Appeal held that there was "good cause" to include the additional members on the restraining order because the repeated abuse occurred outside of the home. The Court of Appeal also defined "good cause" for adding family or household members to a protective order stating, "As a general rule, "good cause" includes reasons that are fair, honest, in good faith, not trivial, arbitrary, capricious, or pretextual, and reasonably related to legitimate needs, goals, and purposes." Tanguilig v. Valdez, (2019) 36 Cal.App.5th 514.

G.??? Attorney Fees.

The Petitioner should request attorney fees in their moving papers by marking the attorney fees section on the Judicial Counsel Form DV-100 and then file a proper noticed motion to recover the fees. Likewise, a prevailing respondent should, if they can meet the Family Code § 6344(b) elements, file a noticed motion for fees.

Family Code § 6344 states:

(a) After notice and a hearing, a court, upon request, shall issue an order for the payment of attorney’s fees and costs for a prevailing petitioner.

(b) After notice and a hearing, the Court, upon request, may issue an order for the payment of attorney's fees and costs for a prevailing respondent only if the respondent establishes by a preponderance of the evidence that the petition or request is frivolous or solely intended to abuse, intimidate, or cause unnecessary delay.

(c) Before a court awards attorney's fees and costs pursuant to this section, the Court shall first determine pursuant to Section 270 that the party ordered to pay has, or is reasonably likely to have, the ability to pay.

·???????? In Faton v. Ahmedo, the Court of Appeal ruled that (1) a party is not barred from requesting attorney fees where the request was not made in the initial restraining order application, and (2) a request for attorney fees arising from a domestic violence restraining order petition need not be decided with the restraining order petition. (FVAP obtained publication) Faton v. Ahmedo (2015) 236 Cal.App.4th 1160

H.??? Immigration.

·???????? In re Marriage of Kumar ensures the rights of California immigrants brought to the United States by a spouse or loved one who legally promises financial support for 10 years through a federal immigration form, I-864 Affidavit of Support. The California First District Court of Appeal held that an immigrant sponsor is under no duty to mitigate damages by seeking full-time work. In so doing, the Court also noted that a sponsored immigrant is not obligated to file a separate civil action for breach of contract but rather may seek to enforce the I-864 in family court. In re Marriage of Kumar (2017) 13 Cal.App.5th 1072.

I.?????? The Judicial Officer.

You need to research your Judge before the hearing and determine whether that Judge is biased or could have a bias against you or your client.?

You can look up your Judge online in the "Robing Room" or other venues or ask other attorneys familiar with the Judge how they tend to rule in certain cases. All judges have certain tendencies and perceive biases, and it behooves you to find out what they are before you present a case.

If you believe they will rule against you, you have ten (10) days from when they are assigned to your case to file a Code of Civil Procedure §170.6 motion to remove them for any reason. You only have one chance to use this recusal, so use it wisely.

CASE NOTE: I had a case in which the assigned Judge had made an adverse ruling against my client in a family law case in which I did not represent him. I reviewed the documents and my client's explanation. I used a Code of Civil Procedure § 170.6 motion to recuse that Judge and ended up with a favorable outcome with another judge. The DVRO was considered a different case.

After the hearing, there is a different procedure if the Judge shows actual bias. Code of Civil Procedure §170.1 allows for the removal of the Judge and vacating the order. This code section is rarely used because the burden of actual bias is so high.

CASE NOTE: I did substitute into a case for Petitioner where a judge had already begun the hearing. Before my entry, he stopped the proceeding and told the respondent to file a restraining order against the Petitioner. He also directed his judicial assistant to assist in preparing the paperwork. I was retained and filed a Code of Civil Procedure §170.1 motion due to actual bias. This instance was a rare and clear showing of prejudice, and the Judge was forced to recuse himself even though he had filed an opposition to the motion.

J.????? Concurrent or Potential Criminal Action.

When defending a respondent in a DVRO, you must determine if there is also a companion criminal action against them. Suppose there is a criminal action alleging the same facts and the same incident alleged in the DVRO. In that case, you must inform your client that they have a constitutional 5th Amendment right against self-incrimination. In most instances, the safest avenue for a client is to request a continuance until the criminal action has concluded. If the respondent testifies, it will be under oath, and a smart District Attorney will order a copy of the transcript of the DVRO. They will then proceed to impeach the respondent in the criminal case with the transcript or use the transcript to add additional charges depending on the testimony.

If you have not had time to prepare for the DVRO trial properly or if a criminal action is filed, the respondent is entitled to and should exercise his right to one continuance as a matter of law.[4] If you have already exercised your one continuance, you could request a further continuance. Usually, the Judge will agree to continue the matter to preserve your client’s 5th Amendment rights. Still, I have had cases in which the Judge refused the continuance due to the Court's calendar.?? In that case, you should file what is termed a Pacers motion. This motion cites the relevant law allowing for the continuance.

Sometimes, if the domestic violence case is weak, and after grilling your client with questions, you are sure they did not do the act, or that they present well as a witness, you can go forward despite the criminal case. If the other party is in pro per and you believe you can shut them down with objections, it may be the best way to cross-examine the person short of the criminal trial. This tactic may help your client in a criminal case but is risky and should only be performed by skilled litigators.

K.??? Written Discovery:

According to Family Code § 6309, discovery in domestic violence cases is limited and does not necessarily fall under the Civil Discovery Act. Family Code § 6309 states in pertinent part:

“(b) Consistent with the findings and declarations and statements of legislative intent in subdivision (a), discovery pursuant to the Civil Discovery Act (Title 4 (commencing with Section 2016.010) of Part 4 of the Code of Civil Procedure), is not permitted pursuant to this part except as set forth in this section.

(c)

(1) A court may grant a request for discovery only upon a showing of good cause for the discovery by the party making the request.

(2) A party may make an oral or written request for discovery to the Court at an evidentiary hearing pursuant to this part.

(3) A person shall not be required to make a written objection or response to a request for discovery but may express any objection or response orally or in writing or at the hearing.

(d) In determining whether to permit discovery in a proceeding pursuant to this part, the Court shall consider all of the following:

(1) The importance and relevance of, and need for, the information sought to be obtained.

(2) The likelihood that the information may be acquired by another permitted discovery method, or may be acquired by other methods including pleadings or examination at the hearing.

(3) The delay in completion of the hearing, which is entitled to calendar preference pursuant to Section 244, if the discovery is permitted.

(4) The potential, if any, that the discovery may induce trauma in any person involved in the proceeding.

(5) Whether one or more persons are subject to any restraining or protective orders.

(6) Any other factor that may affect the prompt and fair resolution of the proceeding.

(e) If a court finds good cause and grants a request for discovery pursuant to subdivision (c), the Court may do either of the following:

(1)

(A) Continue the commencement of hearing for a reasonable period to permit one or more methods of discovery.

(B) If the Court continues the hearing to allow for discovery pursuant to subparagraph (A), the Court shall extend, and may modify, any restraining order in place.

(2) Commence the hearing to receive evidence and then continue the hearing to permit one or more methods of discovery.”

?Due to the limits placed on discovery in these cases, your traditional avenues, such as Requests for Documents and Interrogatories, may not be available. Therefore, your best avenues to get the documents or testimony you need is through the use of subpoenas, Public Records Act (PRA) requests[6], and searching court records.

You can subpoena police reports and other documents from responding agencies, if there are any, or you can submit PRA requests wherein the Agencies are required to produce the documents. The subpoenas are very important at trial if you intend to introduce documents or reports and must provide foundation and overcome hearsay objections. This process would include subpoenaing the person who wrote the report if it is a report you want to enter into evidence or the custodian of records if there are business records you wish to introduce.

Searching court records is another way to perform checks on a person’s or witnesses' past. Suppose the party has a prior domestic violence conviction or other conviction involving violence. That conviction can be used to support allegations of domestic violence. Also, if defending a case, you can find evidence that the opposing party has prior convictions, active warrants, etc.

NOTE: I had a case where I represented the alleged perpetrator, but the entire case was a custody grab. I researched the Petitioner by searching different counties where she lived and found over $500,000 in active warrants, which I was able to produce at trial. Petitioner walked out and never came back.

[1] In re Marriage of Willis & Costa-Willis (Cal. App. 4th Dist. 2023), 311 Cal. Rptr. 3d 175.

[2] Family Code § 3044(c) states “[f]or purposes of this section, a person has "perpetrated domestic violence" when the person is found by the Court to have intentionally or recklessly caused or attempted to cause bodily injury, or sexual assault, or to have placed a person in reasonable apprehension of imminent serious bodily injury to that person or to another, or to have engaged in behavior involving, but not limited to, threatening, striking, harassing, destroying personal property, or disturbing the peace of another, for which a court may issue an ex parte order pursuant to Section 6320 to protect the other party seeking custody of the child or to protect the child and the child's siblings.”

[4] Family Code §245 (a) The respondent shall be entitled, as a matter of course, to one continuance for a reasonable period to respond to the petition.

[6] Government Code § 7920.000