In California, Family Code section 6305 prevents a court from granting dueling restraining orders unless the court takes extra steps. Specifically, “the court shall not issue a mutual order enjoining the parties from specific acts of abuse” without “making detailed findings of fact indicating that both parties acted as the primary aggressor and that neither party primarily acted in self-defense.” In the recent Salmon v. Salmon decision ((2022) 2022 DJDAR 12279), California’s Court of Appeal (Fourth Dist., Div. Two) issued its interpretation of section 6305 regarding Dueling Restraining Orders.
In Salmon, Husband and Wife filed competing requests for domestic violence dueling restraining orders against each other. The wife filed her petition against Husband alleging that Husband was trying to punish one of their children with a belt, Wife tried to intervene, and as a result, Husband battered Wife. The police were called and arrested Husband. Approximately a month later, Husband filed his own petition seeking a restraining order against the Wife alleging that the Wife had initiated the incident on the night of his arrest and had perpetrated several acts of domestic violence in the past. The husband also requested the trial court award him sole legal and physical custody of the parties’ children.
After a multi-day evidentiary hearing, the trial court granted Wife’s petition, denied Husband’s petition, and made the following findings: (1) the Husband was the primary aggressor the night of his arrest, (2) the Wife was the primary aggressor in the previous act of domestic violence, (3) Wife previously inflicted injuries to the parties’ children that would qualify for a presumption against custody under Family Code section 3044, (4) Husband was “grossly derelict” in permitting corporal punishment by Wife against the children, and (5) Husband was “grossly negligent” for leaving firearms accessible to the children in the home.
Husband’s first and main contention was that Section 6305 does not apply when competing petitions allege different incidents of domestic violence regardless of whether petitions for restraining orders are heard separately or together. In Husband’s own words, “Each petition for protection must be determined on its own merits and independent of the other”.
The appellate court disagreed with Husband’s interpretation of section 6305 for several reasons and held that section 6305 applies to all cases in which parties present competing petitions for domestic violence restraining orders, regardless of when the petitions are filed or calendared. However, the appellate court did acknowledge that the few cases to address this issue resulted in opposite outcomes. In adopting the more recent decision’s approach, the appellate court held that two separate restraining orders “that collectively accomplish the same result as a single mutual restraining order are the functional equivalent of a mutual restraining order”.
Second, the appellate court explained the purpose behind section 6305, which is to ensure the trial court engages in “careful evaluation of a thorough record” in all cases with competing restraining orders. Otherwise, the trial court or the parties could simply avoid the extra hurdle of section 6305 through fortuitous calendaring by scheduling the matters on future dates.
Third, the appellate court reasoned that there was no evidence the legislature intended section 6305 to be limited to scenarios where parties are seeking competing restraining orders based on the same alleged incident. On the contrary, the Domestic Violence Prevention Act specifically considers that a single restraining order may be based on multiple acts of abuse. Moreover, when the trial court is determining which party is the “primary aggressor”, the trial court should consider “the history of domestic violence between” the parties. Thus, the appellate court reasoned it makes no sense that a section 6305 analysis only comes into effect if the alleged abuse is the same incident since restraining orders are not necessarily sought because of one incident, but instead a range of behaviors.
Fourth, the appellate court articulated that under Husband’s interpretation of section 6305, “one party could simply wait for the issuance of an order on the opposing party’s petition, immediately file a new petition against the opposing party, and effectively achieve the same result as a mutual restraining order” without the analysis and findings section 6305 requires.
The husband’s second contention was that even if section 6305 applies, and the trial court determines that both parties were aggressors, the trial court is not permitted to pick and choose to grant relief to only one of the parties. However, the appellate court disagreed because the statute contemplates that the trial court will (1) weigh the acts of the parties, (2) determine whether one of the parties should be considered the “primary aggressor” and issue a mutual restraining order only if the trial court determines that neither party can be fairly characterized as the “primary aggressor”.
The husband’s final contention was that the trial court erred in denying his request for sole legal and physical custody and should have at least issued a protective order to protect the children from his Wife. In response, the appellate court noted that Husband’s own petition for a restraining order only sought to protect himself. In other words, Husband had the opportunity to list the children as additional protected parties in his petition but failed to do so and instead just sought a modification of custody. Moreover, the appellate court noted that to modify custody, it is the burden of the party seeking a modification to show that the best interests of the children require the requested change. The appellate court held that the trial court was well within its discretion to deny Husband’s requested custody modification when it found that Husband had been “grossly derelict” in failing to protect his children from past abuse from the Wife and “grossly negligent” for leaving accessible loaded firearms around the children. Finally, the appellate court noted that the trial court referred the matter to the relevant child welfare agency for further investigation.
So, what is the lesson imparted by the appellate court with this decision? Competing requests for domestic violence dueling restraining orders should be analyzed and weighed in conjunction with each other, regardless of what type of abuse is alleged and which party alleges it.