Family Code section 6345, subd. (a) says that domestic violence restraining orders may last for up to five years, “subject to termination or modification by further order of the court either on written stipulation filed with the court or on the motion of a party. These orders may be renewed, upon the request of a party, either for five years or permanently, without a showing of any further abuse since the issuance of the original order”. (Emphasis added.)
But in a recent case, De La Luz Perez vs. Torres-Hernandez, the Court did what the law prohibits, by denying the renewal of a three year domestic violence restraining order against the former boyfriend and indicating “[t]here is no evidence before the Court that there has been actual abuse within the time period that the restraining order has been issued”. As the Court of Appeal stated, “the key consideration for the court is not the type or timing of abuse, but whether the protected party has a reasonable fear of future abuse”.
In this case, the protected woman said that even with the restraining order in place, the father had continued to call her, text her, and threaten her. She further testified that the father had hit their younger daughter once with a shoe, and hit her on another occasion causing a swollen lip. In November, 2012, the mother received a call from the father, saying “Fuck you, bitch” and warning her to stop going to court to ask for support and custody of their children”.
In denying the restraining order, the court said that even if there had been abuse, that abuse was directed toward the children and was therefore irrelevant. The judge also disagreed that these actions constituted abuse. But the appeals court said the “court’s decision was guided by a misunderstanding of the applicable legal principles so it could not properly exercise its discretion” and therefore reversal was necessary.
On the issue of abuse perpetrated towards children, the Court of Appeal noted that the definition of abuse includes placing “a person in reasonable apprehension of imminent serious bodily injury to that person or to another.
So basically, the trial judge, based in Alameda County, got the matter wrong in three ways: by requiring evidence of abuse since the issuance of the underlying restraining order; by not using the proper definition of abuse; and by not considering evidence of abuse against the children rather than just the protected party, i.e., the mother.
As a result, the court was ordered to a hold a new hearing to determine whether the restraining order should be extended for five years or permanently and whether the order should be modified to include the three children of the mother.
The Court of Appeal’s decision was written by Justice Ignazio Ruvolo. Justice Ruvolo was joined by Justices Timothy Reardon and Jon Streeter.
The decision was issued by Division Four of the First Appellate District, but because the case was certified for publication, the matter is now binding precedent on all trial courts and attorneys in state courts in California.
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