There has been a whole lot of debate recently as to the legal validity of restraining orders that are used in a family court setting where the evidence standard is preponderance of the evidence.
In our state abuse is defined by the legislature. Specifically CA family code § 6200 which constitutes the Domestic violence prevention act (DPVA) in the State of California. So let’s define what the legislature considers as abuse. For purposes of the DVPA, “`abuse’ 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, italics added.) The behavior specified in section 6320 includes “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.” (§ 6320, subd. (a); [abuse includes conduct described in § 6320, such as disturbing the peace of the other].
The DVPA also specifies the duration of “the personal conduct, stay-away, and residence exclusion “orders” that may issue after notice and a hearing. (§ 6345, subd. (a).) In the discretion of the court, such restraining orders “may have a duration of not more than five years, subject to termination or modification. Abuse is not merely defined as the reasonable fear standard from physical violence but includes bodily injury or threat of injury, stalking, or sexual assault, or behavior that can be enjoined under Fam C §6320; Fam C §6203. See In re Marriage of Nadkarni (2009) 173 CA4th 1483, 93 CR3d 723.
Indeed California law does not specify a different standard of proof to be applied when issuing orders after a noticed hearing as compared to temporary orders issued without notice to the respondent. The court may issue a restraining order after a noticed hearing if the affidavit provided to the court shows, to the satisfaction of the court, reasonable proof of a past act or acts of abuse. Fam C §6300, §6340. That abuse is based on the subjective experience of the person subjected to said abuse.
From an appeal court standard a restraining order is subject to review under the abuse of discretion standard of the failure to apply the legislature in the applicable manner, (Gonzalez v. Munoz (2007) 156 Cal.App.4th 413, 420.).
In essence the entire restraining order from start to finish from the application of a temporary restraining order is subject to de novo review as the standard for the temporary restraining order and the permanent restraining order is the same one.
The “discretion” applied is the standard that the legislature defines pursuant to CA Family code § 6200 and lists as incidence of abuse. The scope of discretion always resides in the particular law being applied by the court, i.e., in the `”legal principles governing the subject of [the] action ….”‘ (Nakamura v. Parker (2007) 156 Cal.App.4th 327, 337 [67 Cal.Rptr.3d 286], citing City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297 [255 Cal.Rptr. 704] and County of Yolo v. Garcia (1993) 20 Cal.App.4th 1771, 1778 [25 Cal.Rptr.2d 681] [“range of judicial discretion is determined by analogy to the rules contained in the general law and in the specific body or system of law in which the discretionary authority is granted”].
So folks we have a situation in the Riverside Superior Court where diverse judicial officers recognize the extreme hate filled actions of the other parent against the parent requesting a domestic violence restraining order, thus recognizing that the HATRED leveled against the other parent, that exceeds all bounds of reason, disturbs that parent’s peace of mind. We have situations where the judicial officers themselves are DISTURBED by the content of text messages. YET no one does a thing to stop the other parent from the escalating hate filled behavior and the direct impact on the children in this case as no parent capable of such hatred and abuse will EVER facilitate a healthy parent-child relationship.
That folks is not the discretion that the legislature defines pursuant to CA family code § 6200. The legislature also does not equate the threat of physical violence where someone uses third parties or leaves voice mail messages of said threats as an acceptable way for the other parent to express themselves out of mere “frustration” The specific intent of the legislature is to PROTECT and RESTRAIN against such conduct.