Recent Posts in Domestic Violence and Restraining Orders Category

Q.   I obtained DV orders against my child's mother because of her abusive behavior. Since custody was an issue too, the judge ordered us to mediate with Family Court Services. The FCS mediator has recommended week off, week on visitation to her of our 9 year old, but sole legal custody and sole physical custody to me. We have a hearing next week. I am having a hard time understanding how this much visitation time (50%) makes sense. Any thoughts?

Jorge

Jorge:

I think that the family court services mediator doesn't understand the law, but on a level I understand why he/she wants to encourage frequent contact with the child's mom. In this case it appears that by giving you sole legal and sole physical custody titles, that they can recommend any timeshare in terms of visitation that feels appropriate. They can't. The recommendation that you mention is clearly an attempt to end-run the limitations imposed by Family Code section 3044.

Family Code section 3044 creates a rebuttable presumption against joint legal and joint physical custody where there is independent evidence of domestic violence (as in permanent restraining orders for up to five years, as opposed to temporary orders obtained ex parte that are not upheld at the DV hearing). In order for a judge to issue orders for joint physical custody, they must find that the other side has rebutted this presumption. Failure to do so is reversible error. Check FC section 3044(b)(1) - (7) which lists some of the possible evidence that a court might properly consider in finding that the presumption against sole legal and physical custody has been rebutted.

Family Code section 3004 defines joint physical custody as follows:

"Joint physical custody" means that each of the parents shall have significant periods of physical custody...."

A 50-50 timeshare is de facto joint physical custody, no matter how the mediator or the court labels it. In my opinion courts are not free call something sole physical custody and then grant such a significant timeshare to the mother in your case without making the required 3044 findings.

Make this point to the judge at your upcoming hearing. Make sure he or she states their findings regarding the rebuttal factors on the record, and if any of the subparts to subsection (b) apply in your favor, point this out. For instance, has Mom completed a batterer's treatment program? [3044(b)(2)]. Has she complied with the court's orders [3044(b)(6)], meaning she has not re-violated the restraining orders? Has there been any further acts of domestic violence [3044(b)(7)]?

Moreover, subsection (e) states: " When a court makes a finding that a party has perpetrated domestic violence, the court may not base its findings solely on conclusions reached by a child custody evaluator or on the recommendation of the Family Court Services staff, but shall consider any relevant, admissible evidence submitted by the parties." Hence, more is needed that a family court services' recommend to overcome the presumption.

Judges sometimes feel - in marginal DV cases in particular - that FC section 3044(1)'s reference to "frequent and continuing contact with both parents" is more important than the DV history and the risks that such orders imply. Mediators sometimes feel badly that 3044 is too strict. Some think that the label is what matters, but many cases (especially in the move-away arena) establish that such labels (i.e., joint custody or sole custody) do not control. We look instead to the actual timeshare.

The law is clear that documented histories of domestic violence cannot be ignored where children are concerned. On the other hand, if the Court makes findings that are substantially supported by the record in your case in Mom's, this is likely within its "sound discretion" to find that the 3044 presumption has been rebutted if there is any evidence to support the trial court decision.

BTW, I recommend you always argue the alternative that best supports your children together with your (and their) personal safety. In other words, just because you can cut off the other parent, don't do it unless it serves your children's interests.

Good luck!

Thurman Arnold, C.F.L.S.

F.T. vs. L.J. (2011) 194 Cal.App.4th 1

F.T. v. L.J., case number D057493, is an important opinion for move-away applicants and their attorneys not just because it clarifies existing law and provides guidance on a host of issues commonly encountered in litigation over these arguably unfortunate situations, but it is going to be widely talked about by the mental health community and will influence how  Evidence Code 730 and Family Code section 3111 evaluators report to the courts because of this appellate court's attention to the details for what various FCS ("family court service" employees) and MHP's ("mental health professionals") opined. It appears that some of them, including the court mediators, took their eye off the ball as established by earlier legal precedent on this topic and the information presented to them.

The parties in this case dated for five or six months and this brief time together produced a bouncing baby boy in January, 2006. For the first thirteen months of his life, the child lived with Mom. On February 17, 2007, however, Mother burned her baby's arm with a hot curling iron "apparently to each him a lesson by showing him how hot it was." Father picked the boy up that evening, saw the injury, and took him to the hospital. Hospital staff called CPS and the police. Criminal charges were filed against the mother.

The child was placed with Dad and Mother's visitations were ordered supervised. Two weeks later he filed a petition to establish paternity and an OSC requesting orders for sole legal and physical custody. The parties were directed to attend custody mediation through Family Court Services but were unable to reach agreement, and so the mediator recommended that the child's primary residence be with Father and that Mother have supervised visits. In April, 2007, the parents stipulated to the recommended order "without prejudice to either party."

Five months later Father filed an OSC request seeking an order allowing him to move with the child to Texas. The parties were ordered back into mediation. At that time following a custody review hearing, the trial court removed the supervision requirement for Mom's visitation. Once again (surprise!) the parties could not agree in mediation, and the mediator recommended that Father have primary physical custody and that he be allowed to move, noting that in November, 2007, Mother had pleaded guilty to one count of simple battery on the child and was given four years' probation, and that she had an eleven year old child from a previous relationship who lived with the paternal grandparents.

For unknown reasons Father's request went off calendar at the time of the scheduled December, 2007, move-away hearing. In February, 2008, he refiled his application and psychologist Yanon Volcani, Ph.D., was appointed to conduct a psych evaluation of the parents and child. He issued a report in September, 2008.

Volcani recommended against the Father's proposed move to Texas, believing that it would interfere with this 2 1/2 year old's bonding with Mother because of the distance (based upon current best mental health opinions on the developmental stages of children). Volcani concluded that telephone, webcam, and other means of contact would not be well suited for a child this age, and had concerns whether Father would "enthusiastically" support the child's relationship with his mother. He also felt that mother had learned from her experience of burning the child, and while her action was 'rash, impulsive, and insensitive' the data did not suggest a "broader abusive intent." He recommended that Mother's timeshare be incrementally expanded.

On September 18, 2008, the trial court adopted Volcani's proposed parenting plan as a temporary order pending an evidentiary hearing, without prejudice, based upon findings that this was in the best interests of the minor. The matter was then lost in the limbo of hearing continuances and further court services mediations ultimately until March 5, 2010.

By now Father was requesting permission to move to Washington instead of Texas, and was intending on marrying a woman living there. Mother had married. Lynn Waldman, a Family Court services counselor, reported to the Court that she had learned that the minor child in 2009 began exhibiting rage, temper tantrums, and other behavioral issues at school and that this three year old was seeing a counselor who couldn't explain "where [Child's] anger is coming from. She interviewed Dr. Volcani but developed incorrect impressions about whether he'd last met with the parents over the two ensuing years after his initial report, and other misconceptions. She recommended against the move to Washington, but stated that Father should remain in his role as the primary caregiver.

In February, 2010, Volcani issued a report supplementing his opinions from September, 2008. Father by then had married his fiance, who herself had two teenagers. Volcani had re-interviewed the parents, the new spouses, and the minor's preschool teacher and therapist. He noted that since the initial evaluation that the parents had been co-parenting in a "relatively cooperative and stable manner." The minor was continuing to have rage issues (e.g., throwing a chair and punching another student) but these were improving. Still, because of the child's age it was difficult to know what was causing it.

On March 5, 2010, the trial court held a hearing but did not permit live testimony and denied the Father's request to move. The court made a number of findings which were not supported by the record. Chief among them was the conclusion that the parents "are not communicating" - when in fact Dr. Volcani actually stated otherwise and that their communications had vastly improved over the two years that had passed. Moreover, without any rational MHP support, the trial court concluded that the evidence proved the child's rage, speaking out in his sleep, and bed wetting all had to do with the parents' lack of a meaningful dialog. The court stated it "feels that the anger is coming from the tension between the two parties."

Maybe, but the court didn't pull this conclusion from any evidence before it in terms of an expert assessment and conclusion that this was the case (the child's own therapist couldn't explain the child's behaviors). Some conclusions apparently exceed what common sense would otherwise suggest.

By the way, what is a three year old doing with a therapist?

Anyway, the Court adopted Volcani's conclusion that the child's healthy development was being impeded, although on different grounds than Volcani had expressed. The court concluded "Father's reasons for the move, that is to join a new wife and family, are not sufficient and a new wife and family in Washington is not a sufficiently necessary reason to move the residence of [Child] to Washington...."

Huh?

Moreover, the Court implied that if Father decided to move anyway that the Court would take custody away from dad and give it to mother, a really bad idea under existing caselaw because of its coercive overtones.

Enter the Established Law of Move-Away

This is what makes this case important - a judge that was justifiably bothered by the impact that the relocation would have on the relationship between a parent (mother) and child understandably struggled not to permit the move. But she was wrong and the appellate court scolds her harshly for it. Her decision was not an exercise of informed discretion.

At the same time, some of the Father's arguments were off-track as well. For instance, he argued that he had a presumptive right to move under authority of Family Code section 7501 which states: " A parent entitled to the custody of a child has a right to change the residence of the child, subject to the power of the court to restrain a removal that would prejudice the rights or welfare of the child." The Fourth Appellate District ruled that 7501 only applies to "final" custody determinations, and not those that are "temporary," following the case of Montenegro v. Diaz (2001) 26 Cal.4th 249. Here the parties had lived under a "stipulation" for two years, but had never reduced it to a final agreement and no court had ever ruled as to any contested matter within the context of an evidentiary hearing. This is a rule that most family law attorneys already know well (which is why the smart ones write their orders to declare the custody agreements favoring their clients as "final" orders). The practical effect of this fact in this case was that "Mother did not have an initial burden to show [that] Child would suffer detriment were he to move with Father to Washington." 

Father also argued that because Mother had been convicted of battering her son, a presumption arose under Family Code section 3044 that she should not have custody of the boy that was possibly "conclusive" if not merely rebuttable. While the idea that the presumption might be conclusive based evidently upon the appalling seriousness of intentionally burning a child is ... creative ... it doesn't track in the slightest what California law says on the subject, and was quickly disposed of by the appellate judges. The justices ruled that "[a] section 3044 finding of domestic violence 'in a family law case changes the burden of persuasion as to the best interests test, but it does not limit the evidence cognizable by the court, and it does not eliminate the best interest requirement."  "Nor does the statute establish a presumption for or against joint custody; again, the paramount factor is the child's health, safety and welfare. And where the section 3044 presumption has been rebutted, there is no statutory bar against an award of joint or sole custody to a parent who was the subject of the order. This is particularly important in move-away cases." In this case the trial court had not made any express findings under section 3044 anyway, so on remand that is a subject the court is directed to pick up.

However, what the trial court did wrong is this:

The father had no burden to prove his move was "necessary". When the trial court opined that "Father's reasons for the move, that is to join a new wife and family, are not sufficient and a new wife and family in Washington is not a sufficiently necessary reason to move the residence of [Child] to Washington...." it supplanted the rule of law with an understandable discomfort with the effects the move would have on Mom's relationship with her son. The issue instead was the best interests of the child, and that decision must be considered in light of the established rule that "the paramount need for continuity and stability in custody arrangements - and the harm that may result from established patterns of care and emotional bonds with the primary caretaker [father here] - weigh heavily in favor of maintaining ongoing custody arrangements." 

Hence, Judge Schall's "order denying Father's motion reveals a misunderstanding of the determination a trial court must make in deciding a move-away motion by a custodial parent. In this case, the trial court, in effect, avoided the ultimate question whether a change in custody would be in Child's best interests were the custodial parent (Father) to move to Washington.... The question ... is not whether the parent may be permitted to move; the question is what arrangement for custody should be made [if and when the custodial parent moves]." A custodial parent is not required to show a planned relocation is necessary.

In other words, the trial court has to assume the plan for the proposed move is a serious one, and has to address the issue of custody as though the move will occur. Moreover, and this is the heart of the decision and the basis for reversal, "[t]o the extent the trial court denied Father's move-away motion with the goal of maintaining the status quo and/or coercing Father to abandon his plan to move to Washington, it erred." [Italics added].

Finally, while the effect of a move will naturally be detrimental to the child's relationship with the remaining parent, this is but one factor for the court to consider and cannot be the sole basis for denying a move. The case of Marriage of LaMusga (2004) 32 Cal.4th 1072 (hand's down the most important move-away case to know), establishes a litany of factors for trial courts to consider in their totality - which is the subject for another Blog.

This case is reversed and remanded to the trial court to evaluate all the LaMusga factors and so exercise an informed discretion before summarily denying Father's request to move.

Okay, sorry, I'm tired now - I'll be back to add some more thoughts!

Thurman W. Arnold, III, C.F.L.S.

Q. My ex-husband and I are involved in a bitter custody dispute. I recently realized he had not changed his Email password, and so I was able to enter his account and review his emails. I found evidence that proves he is using drugs, and I think this puts my son at grave risk. How should I best present this evidence to the Family Law Judge?

A. In my opinion you don't, and I'd advise you to stop snooping his emails no matter how important you think it is for the safety of your child. Beyond the fact that you expose yourself to a civil lawsuit for invasion of the Father's privacy, and have violated various State and Federal laws, you run a couple of other serious risks that may adversely affect the custody outcome you seek - these far outweigh whatever advantage you think the information gives you.

Most importantly as it relates to custody under California law, invading someone's email account and sharing what you find quite arguably constitutes a form of domestic violence. This was established two years ago in a case entitled Marriage of Nadkarni (2009) 173 Cal.App.4th 1483. If permanent restraining orders are issued in a domestic violence action that your ex could choose to file against you when he learned what you'd done (i.e., when you submitted the emails as exhibits filed with the court), a smothering presumption arises against you under  Family Code section 3044 "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, pursuant to Section 3011." In other words, if the family court granted orders against you as a result of this conduct, you may end up assuring you lose your case and hence the ability to safeguard the very persons whom you hope to protect.

In Nadkarni the Husband gained access to the wife's email account and attached copies of her private email between she and others (including her attorney) to show that Mother had lied to Child Protective Services, and that she'd told the children to lie to him as well - and more. Husband argued he had "no choice" but to use these emails because his "kid's safety was at stake" and that he'd accessed the accounts "in sheer panic and desperation" to protect the children. Sound familiar?

Upon discovering this Wife immediately sought temporary restraining orders pursuant to Family Code section 6320.  That section permits courts to issue DV orders to stop behavior that amounts to "disturbing the peace." She alleged that she had never authorized Husband to use the account or given him the password. She also claimed that Husband was using the information to stalk her, and that his activities made her fearful because he'd beaten her badly during the marriage - and was criminally convicted of same.

While a temporary order was issued upon her application, at the hearing for permanent restraining orders her application was denied. The trial court felt that this behavior did not rise to the level of what should be restrained under the Domestic Violence Prevention Act.

Wife appealed and the trial court's interpretation of FC §6320 was reversed. The appellate court ruled "we believe that the Legislature intended that the DVPA be broadly construed in order to accomplish the purpose of the DVPA. Therefore, the plain meaning of the phrase 'disturbing the peace' in section 6320 may include, as abuse within the meaning of the DVPA, a former husband’s alleged conduct in destroying the mental or emotional calm of his former wife by accessing, reading and publicly disclosing her confidential emails." The case was ordered sent back to the trial court to hold a full hearing on the wife's claims. I imagine she won that hearing.

Family law disputants are often acting in "sheer panic" but the ends do not justify the means. You risk blowing yourself up if you attempt to use the material you obtained in any way. Destroy it. I suppose we could come up with exceptions or justifications under extreme facts, where for instance a conspiracy to commit a murder or some other major crime was uncovered, that might trump the prohibition against this type of behavior. But the value of what you have here is insufficient to justify your actions, and the evidence would likely not be admitted anyway over an objection. Even if your husband does not press the advantage you potentially give him by seeking DV orders against you, most judges (and hopefully a lawyer advising you) will question your decision-making abilities once you expose what you did. A lawyer would be ill-advised to submit these emails to the court on your behalf, not merely tarnishing his own reputation but possibly exposing himself to civil liability as well.

Resist your panic, and resist your curiosity. These disputes dial people into temporary insanity and reactivity, and often the result winds up bringing about the very thing they most fear (this dad gaining primary physical custody and reducing your custodial timeshare). There are better ways to skin this cat.

• Exclusive residence possession (kick out orders) [FC §6321]
• Ensuring the other party has limited access to children  [FC §3044]
• Making their own spousal support claims seem more meritorious [FC §4320(i)]
• Anticipating and cutting off an anticipated spousal support request from a lower earner spouse [FC §§ 4320(i) and 4325]

To be fair to judges, these cases are hard to evaluate. The California legislature has set a very low standard of proof and hasn't cleared up inadequacies, ambiguities, and contradictions within our own Family Code statutory scheme and so a default strategy has been assumed that it is appropriate to treat DV offenders, once a finding has been made, quite harshly (a good example of this is that the statutes below reference FC § 6211, when domestic violence is not really defined anywhere in the California Family Code). There are few appellate decisions that guide trial courts, and the ones that exist are based upon bad facts at least as far as the alleged perpetrator is concerned in the sense that the DV offenses were serious. There is no good appellate court case yet on behalf of an alleged abuser who committed a relatively minor infraction (i.e., damage to property with no physical threats or violence), and none that speak to mitigating circumstances.

I want to be very clear that I abhor domestic violence. But I abhor manipulative litigation strategies just as much - because I believe that domestic violence comes in many forms, and that abusing the system to gain power in legal proceedings is also exactly the type of violence that people, possibly like you, should be protected against. The problem for judges is that it is hard to spot, and making mistakes can result in deaths.

So this is where you are:

California Family Code section 4325 provides:

    "(a) In any proceeding for dissolution of marriage where there is a criminal conviction for an act of domestic violence perpetrated by one spouse against the other spouse entered by the court within five years prior to the filing of the dissolution proceeding, or at any time thereafter, there shall be a rebuttable presumption affecting the burden of proof that any award of temporary or permanent spousal support to the abusive spouse otherwise awardable pursuant to the standards of this part should not be made.

    (b) The court may consider documented evidence of a convicted spouse's history as a victim of domestic violence, as defined in Section 6211, perpetrated by the other spouse, or any other factors the court deems just and equitable, as conditions for rebutting this presumption.

    (c) The rebuttable presumption created in this section may be rebutted by a preponderance of the evidence."

Hence, in the event of a criminal conviction of DV within five years there is a rebuttable presumption of no support, period. However, notice that rebutting this is by the same standard that the judge remarked to you about when he/she issued the restraining orders - in other words, "more probable than not." One hopes that judges apply the same standards to each question they face.

Family Code section 4320(i), regarding post-judgment spousal support, is being interpreted by courts as applying to temporary support order applications as well. It reads:

    "In ordering spousal support under this part, the court shall consider all of the following circumstances:

    * * * (i) Documented evidence of any history of domestic violence, as defined in Section 6211, between the parties, including, but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party, and consideration of any history of violence against the supporting party by the supported party.

    * * * (m) The criminal conviction of an abusive spouse shall be considered in making a reduction or elimination of a spousal support award in accordance with Section 4325."

4320(i) does not require evidence of any kind of conviction, although of course that would be relevant - and it cuts both ways: It gives the court discretion to award more spousal support just as well as giving the court to deny spousal support, upon "[d]ocumented evidence." Subsection (m) just restates 4325.

Hence, whether a presumption against spousal support attaches per 4325 or is just in the judge's mind under 4320(i), what you need to present is evidence that will overcome the presumption of 4325. This means: Why should the court not follow the legislative directive that presumes you are not entitled to spousal support? There is no case yet that gives trial courts any guidance on this subject (i.e., "what needs to be proved?"), and it will take a dedicated judge who is deeply passionate about the law - and the proper facts - to turn the populist pendulum that is still in reactive mode to the deplorable sins that true DV generates.

I recommend the following arguments for rebutting the presumption, as applicable:

• Assuming that you had a criminal conviction, argue that you served your time
• Assuming that you were ordered to complete a 52-week batterer's program, argue that you complied
• If you have a long term marriage, i.e., for more than 10 years point that out
• Did your Wife allege a single incident or a pattern of incidents? One of the thorny problems concerning domestic violence restraining orders is that so many different types of conduct, ranging from merely annoying to life threatening, can give rise to them. What your wife alleged in terms of the apparent seriousness (or lack of injury) of your offense might mitigate in your favor by a preponderance of the evidence when balanced against your need for support and all other relevant circumstances considered together
• If there is evidence that you and your wife were mutual combatants at any time, i.e., that (as with too many families) you both behaved badly, present that evidence
• Remind the court that at worst you have the same burden to justify support now as your wife had to justify DV orders then
• Point out that you have been deprived of your livelihood by reason of your Wife's conduct, and that she is, as you say, in control of not only your properties, your joint funds, but also your tools
• Demonstrate that your spouse took control of all the assets, even before the DV situation erupted, not to attack the prior court ruling (which your present judge will always assume was valid and binding), and that she has maintained this control to such an extent such that you have been entirely deprived of your community property entitlements (in breach of fiduciary duties owing you from her) but also that you have been deprived of the very items that would allow you to be self-supporting. Where DV is indeed trumped up, the reporting party tends to behave in predictably controlling ways. Point this out together with any relevant conduct on the part of your spouse - has she met her sua sponte disclosure obligations? Has she ruined your credit by not paying some of property creditors that you are obligated on? Has she changed  your mailing address so that you didn't receive information that might impact your livelihood?
• I cannot overstate that the likelihood is that only a breach, or the substantial appearance thereof, of fiduciary duties on the part of your spouse will meet your burden. Fiduciary duties and alleged spousal abuse are linked at the hip....
• Remind the court more than once that you have met your own burden of proof by the same standard that allowed you to get into this mess
• Request an evidentiary hearing to establish all of the foregoing. Remember Family Code section 217! 

This is a difficult situation. We need a good appellate decision on it, or some legislative guidance.

As I come up with other ideas I will come back and supplement this article.

    "(a) At a hearing on any order to show cause or notice of motion brought pursuant to this code, absent a stipulation of the parties or a finding of good cause pursuant to subdivision (b), the court shall receive any live, competent testimony that is relevant and within the scope of the hearing and the court may ask questions of the parties.

    (b) In appropriate cases, a court may make a finding of good cause to refuse to receive live testimony and shall state its reasons for the finding on the record or in writing. The Judicial Council shall, by January 1, 2012, adopt a statewide rule of court regarding the factors a court shall consider in making a finding of good cause.

    (c) A party seeking to present live testimony from witnesses other than the parties shall, prior to the hearing, file and serve a witness list with a brief description of the anticipated testimony.

If the witness list is not served prior to the hearing, the court may, on request, grant a brief continuance and may make appropriate temporary orders pending the continued hearing."

Family Code section 217 will cause a sea-change in day to day family court proceedings across our state, unless family court judicial officers ignore it to the limited extent possible by court rules.  It will likely have immense financial and resource consequences upon not only the courts but upon parties to family court proceedings.  It will force the state government in coming years to study whole new paradigms for resolving divorce and domestic partnership dissolution outside the adversary template, including those currently practiced in New Zealand and southern Australia. 

It will also pressure parties to consider mediation, and collaborative processes which occur outside congested courthouses, much more carefully.  The costs of adversary litigation are about to sky-rocket, making mediation even more appealing from a financial perspective (I have written extensively about the emotional and psychological benefits here an elsewhere).  There simply is no governmental money available to absorb the coming Elkins Onslaught. For more information about an alternative method for resolving family disputes, please visit us at www.DesertFamilyMediationServices.com.
  
At the same time, at least in the short run taken together with some of the other revisions that become effective next month, it may encourage more people to litigate more stubbornly and so make mediation seem less attractive than it did before the changes (just the reverse will be true).  Some folks will mistakenly assume that this invites the use of court hearings as a live-testimony forum for sharing unresolved complaints relating to their marriage or domestic partnership dissolution with the other party in open court.  Instead, judges will sustain objections to such irrelevant material and parties who seek to use Family Court as a platform to air relationship grievances will find themselves alienating the trier of fact in ways that will have adverse consequences to them beyond just the time and expense of the exercise. 

The purpose of today's Blog is to introduce you to section 217 and the new changes.  I will follow up with more articles in coming weeks.  Without a doubt the new rules will make all the information I provide on my websites more relevant and timely for my readers.