On September 29, 2020 California S.B. 1141, Chapter 248, was filed with the California Secretary of State enacting revisions to Family Code section 6320, a part of the Domestic Violence Prevention Act ("DVPA").
The amendments add new subsections (c) and (d), providing for a greatly expanded definition of “disturbing the peace of the other party” within the definition of “abuse” under Family Code section 6203.
This amendment defines “disturbing the peace of the other party” as conduct that destroys the mental or emotional calm of the other party, including conduct that amounts to coercive control as being a pattern of behavior that unreasonably interferes with a person's free will and personal liberty, unreasonably isolating a victim from friends, relatives, or other sources of support, depriving a person of basic necessities of life, keeping a person under monitoring, and intimidating by use of a person’s immigration status. Keep in mind, this law only applies to persons within certain defined relationships (immediate family members, current and former dating partners, common-household members, etc).
The New Law
The full text of the new Family Code section 6320 now provides (with the new portions in italics below):
“(a) The court may issue an ex parte order enjoining a party from molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, credibly impersonating as described in Section 528.5 of the Penal Code, falsely personating as described in Section 529 of the Penal Code, harassing, telephoning, including, but not limited to, making 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.
(b) On a showing of good cause, the court may include in a protective order a grant to the petitioner of the exclusive care, possession, or control of any animal owned, possessed, leased, kept, or held by either the petitioner or the respondent or a minor child residing in the residence or household of either the petitioner or the respondent. The court may order the respondent to stay away from the animal and forbid the respondent from taking, transferring, encumbering, concealing, molesting, attacking, striking, threatening, harming, or otherwise disposing of the animal.
(c) As used in this subdivision (a), “disturbing the peace of the other party” refers to conduct that, based on the totality of the circumstances, destroys the mental or emotional calm of the other party. This conduct may be committed directly or indirectly, including through the use of a third party, and by any method or through any means including, but not limited to, telephone, online accounts, text messages, internet-connected devices, or other electronic technologies. This conduct includes, but is not limited to, coercive control, which is a pattern of behavior that in purpose or effect unreasonably interferes with a person's free will and personal liberty. Examples of coercive control include, but are not limited to, unreasonably engaging in any of the following:
(1) Isolating the other party from friends, relatives, or other sources of support.
(2) Depriving the other party of basic necessities.
(3) Controlling, regulating, or monitoring the other party's movements, communications, daily behavior, finances, economic resources, or access to services.
(4) Compelling the other party by force, threat of force, or intimidation, including threats based on actual or suspected immigration status, to engage in conduct from which the other party has a right to abstain or to abstain from conduct in which the other party has a right to engage.
(d) This section does not limit any remedies available under this act or any other provision of law.”
Our Reactions to Amended Family Code Section 6320
Supporters of these amendments to Family Code section 6320 will laud inclusion of the types of behaviors that can subject another to a restraining order to improve (or force) our society to stop certain brutish behavior and shape us to a more ideal plane of existence, but critics will point out the flaws of not only the language but also of the apparent disconnect with the reality of human nature and close, personal relationships.
I will endeavor to flush out a few of these tensions, and I note the general thrust of the amendments is to introduce the concept of “coercive control” into the California legal lexicon.
The amendments certainly indicate the Legislature’s recognition of advances in technology making more possible to invade another person’s privacy than ever before in human history (and in many instances, without the other person even knowing it at the time and for a long period of time after), and the invasion of such privacy a already-recognized form of abuse (see In re Marriage of Evilsizor and Sweeny (2015) 237 Cal.App.4th 1416).
It is common for me to hear clients’ stories of how his or her phone is constantly being taken and reviewed surreptitiously or by aggression/intimidation of their significant other. I have even personally been on the business end of such behavior in a prior relationship (getting out of the shower and asking myself ‘Where the hell did I put my phone? Oh well I need to leave for work,’ and then it magically appears on my dresser when I get home from work).
Tracking devices internal to phones or stand-alone to attach to cars are cheap and only take a few moments to install and will produce a summary of a person’s comings and goings on a given date or over a range of days. Some phone programs like PhoneSheriff (which markets to parents of teenagers, at least on the surface but I suspect a lot of people use it for monitoring a suspected cheater) will copy all incoming and outgoing communications for a phone, send those messages to another host/device, and the user will not even know it exists in the background. Similarly, cookies save log-in passwords so leaving the home computer unattended may allow one spouse to see the other was lying when s/he said s/he was going to a 'church event' on such-and-such a date when the credit card statements shows purchases at the casino on that date, or maybe a hotel room.
The tension here is between a spouse’s desire to know if they are being lied to and/or cheated on, and the other’s spouse’s general freedom of being free from spying. I suppose the Legislature thinks the interest of the latter group outweigh that of the former group, and apparently truth is outweighed by a liar’s dignity.
A common tactic of abusers is to physically and/or emotionally isolate a victim to decrease the possibility of the victim escaping the cycle of control. This has no real place in a civil society, but the reality is many people prefer a remote location to live, with many acres or miles from any other home. Abraham Lincoln’s father believed it was time to move and build a new cabin the moment another smoke trail appeared in the sky, so separation from others is a deeply rooted American value for many. The statute’s amendments could be abused in litigation by using a valid objective like a preference for remoteness to help prove abuse.
A similar common tactic is for an abuser to restrict the other’s means of enjoying life (or even surviving the ordeal - even without Covid), and again this has no place in civil society (especially between spouses who have a duty to support each other under the law while married).
However, the new amendment could be abused by situations where, for example, one spouse learns the other has removed large sums of money from the savings account (maybe to satisfy a drug, gambling, shopping, or other problem), so s/he transfers the remainder of the family savings out of the joint account for safe-keeping and leaves the other with little to no funds to buy groceries that week. Similarly, many custody orders require the “consent” of parents to, for example, schedule doctor and dentist appointments for the kids, but what if one parent cancels or changes the appointments made by the other parent because the one parent can’t attend (a good faith action) or in a game with the other parent (a bad faith action). Bench officers will probably get DVRO requests in both scenarios and will need to pay close attention to the facts to flush out if the situation is truly one of abuse or not.
Another common situation I hear of is of an abuser who is “threatening to call ICE” concerning the victim to use the threat of deportation to coerce the other. Our Legislature clearly recognizes this is a frequent and pervasive problem, and I have no counter-example to show how it could be abused, other than keeping in mind that he-said/she-said can meet a party’s burden of proof of the Court finds that party more credible.
As to the language in the amendments, some of the words and phrases used are familiar to, and even well-enshrined, within the bench and bar like “totality of the circumstances” and “unreasonably”. But others I have not seen in statutes such as ambiguities like “interferes with a person’s free will and personal liberty.” Virtually anything could qualify as such (bearing in mind such must be “unreasonable”).
First, for eons philosophers, theologians, anthropologists, and others have struggled with the concept of “free will,” the questions of what it is, whether it even truly exists, and if so to what degree. Apparently, the Legislature is calling California bench officers to help weigh-in and the take up the debate. Second, personal liberty apparently must have its limits for a functioning, healthy relationship to bear out well-adjusted children; as indicated above personal liberty at its broadest meaning must include the ability to lie to a spouse, cheat on that spouse, spend all the family money to support a bad habit or poor choices, etc. Considering California is a ‘no-fault’ state when it comes to divorce, there already is virtually no check on bad behavior in spousal relationships (except domestic violence, and stealing/giving away or otherwise disposing of community assets in a reckless manner). But the other evils of relationships, like cheating and lying do not make one dime of difference in property division and support, and do not make one hour of difference in child custody and visitation. So, there is a legitimate concern that the expansions of the concept of abuse as embodied in the amendments to section 6320 will discourage one form of amoral behavior and encourage other forms of amoral behavior. Such is the policy of the law in its most current form.
One certain impact of the 2020 amendments to Family Code section 6320 is that the cost of DV litigation will substantially increase; be prepared to spend substantially more money to hire a lawyer to bring or to defend a DV trial, and the stakes for you could not be higher. Again, the lawyers win - or the lesser empowered spouse loses.
Ugghhh. Wish it weren't so.
Or at least that is how I see it. You?
Michael C. Peterson, CFLS