Family Code (FC) Section 6200 to 6320 codifies DVPA. The legislative intent of DVPA has a protective purpose that is broad both in its stated intent and its breadth of persons protected.” Caldwell v. Coppola (1990) 219 Cal. App.3d 859, 863.
FC Section 6211(c) is abuse intentionally or recklessly causing or attempting to cause bodily injury or sexual assault or placing that person in reasonable apprehension of imminent serious bodily injury to that person or to another, or in any behavior that has been or could be enjoined pursuant to FC Section 6320.
FC Section 6320 includes, stalking, threatening, harassing, telephoning, contacting, either directly or indirectly by mail or otherwise within a specified disturbance or disturbing the peace of the other party. FC 6320 does not define disturbing the peace.
In Conness v Satram: (2004) 122 Cal. App. 4th 197 202, 18 Cal.Rptr.3d 577), the court held that the requisite abuse need not be actual infliction of physical injury or assault. It also broadly provides that disturbing the peace constitutes abuse for purposes of DVPA.
The plain meaning of disturbing the peace is “conduct that destroys the mental or emotional calm of the other party. (Marriage of Nadkarni) (2009) 173 CA.4th 1483. The husband/father accessed mother’s private emails. The father repeatedly abused her physically during marriage. The wife/mother stated there was a history of physical abuse and he would use the private and privilege info to “control, harass, or abuse her.”
The court held that in addition to physical violence, “any type of knowing and willful behavior that harasses or disturbs the peace of mom also meets the requirements for a restraining order.” Moreover, “any reasonable person who has been subject of history of abusive and harassing behavior would be in reasonable fear.”
The mother’s argument is that the requisite abuse need not involve physical injury or assault, DVPA must be broadly construed to authorized where it shows fear for the safety of the applicant, due to applicants, previous physical violence-harassed her, disturbed her peace, frightened her, intimidated her.”
Since it is virtually impossible to for a statute to anticipate every circumstance or need of every person, trial courts are given wide discretion to determine the credibility of the party and the allegation(s).
In Gonzalez v Munoz (2007) 156 Cal.App.4th 14, the trial court to granted a restraining order “for the purpose of preventing a recurrence of domestic violence and ensuring a period of separation of the persons involved, if an affidavit shows to the satisfaction of the court, reasonable proof of a past act or acts of abuse. (FC Section 6300).
PHYSICAL ABUSE & VIOLENCE are defined as (1) intentional or recklessly causing or attempting to cause bodily injury (FC 6203a) (2) placing a person in “reasonable apprehension” of imminent serious bodily injury to that person or another (FC 6203c) and (3) engaging in any behavior that has been or could be enjoined pursuant to (FC 6320d).
Civil harassment is governed by CCP 527(b) and stalking by CCP 1708.7. While most of my restraining order cases stem from physical violence or assault, it is critical that disturbing the mental and emotional calm of your child and/or yourself are considered. It is especially important that in filing your restraining order, the facts and the effects of the mental abuse must be documented accordingly.
I have had hearings regarding restraining orders when the client retains my office only AFTER he/she has filed the domestic violence restraining order pleadings and what inevitably happens is that the declaration of the party is lacking sufficient details about all of the incidences. My job then becomes more difficult, since the court and opposing counsel will always inquire whether the allegations were properly noted in the initial filing.
The lesson is that prior to filing your domestic violence requests orders, call my office so your pleadings properly state the facts, law, corroborating evidence, and witnesses to insure due process has been provided to the opposing party. Otherwise, you are risking that crucial information and evidence will be excluded by the court.
Any questions or inquiries, you may reach me directly at 310-601-7144 or email me at [email protected]
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