TRO Violations Lead to Possible Permanent Domestic Violence Restraining Order

If a California judge grants a temporary restraining order and then, before the hearing, the restrained person makes what the judge considers “technical violations” of the order, is that enough to grant a permanent restraining order at the next hearing?

The answer is yes, according to a recent decision by the California Court of Appeal, which ruled 3-0 that a man’s violations of the temporary restraining order (“TRO”) were not technical and were enough to justify a restraining order against him, regardless of whether there had been a temporary restraining order in effect or not.

The decision involved a case called N.I. v. H.T., where the wife obtained a TRO in January, 2017, protecting her three-year-old-son and her seven-month-old daughter from her husband. The order did allow for “brief and peaceful contact with (the mom) and peaceful contact with children . . . as required for court-ordered visitation”.

The TRO was extended to September, 2017. Although the facts are not entirely clear, the mother “filed a request for a DVRO (Domestic Violence Restraining Order), which was based entirely on the husband’s alleged violations of the TRO”. (Whether this was her second request or a renewed request for the restraining order that she requested when she first filed in January, 2017, is not clear. In any event, the husband denied he had violated anything.

The mother wrote a declaration that accused the husband of telling her that she should kiss him and hold his hand and that she had responsibilities as his wife. She alleged she could not walk away because, while the husband was talking to her, he was either holding the parties’ daughter or getting her things one by one from the car.

In response, the father denied the allegations and said “I do not deny that I am a man of strong Christian faith”.

At the actual hearing, the mother testified “‘[H]e took advantage of the situations and saying (sic) he needed to talk to me and that I had obligations towards him as a wife. He gave me presents also to get back together”. There was even an audiotape of two visitation exchanges at which the father told the mother that he did not need to abide by the terms of the restraining order. There was another tape, this one on video recorded by a friend, where the father stalled returning the child to the mother and reminded the mother that she was his wife. There was further evidence of the father’s car at the mother’s apartment, which was at an address that was supposed to be confidential. There was also evidence that at one of the child exchanges, the husband gave the mother a letter by putting it in a diaper bag. The letter quoted the Bible. Another time, the father picked up the child 15 minutes early for a visitation by getting her at the library where she was hanging out with her mother rather than at the police station where exchanges were supposed to be.

The trial judge, the Hon. Donald F. Gaffney of Orange County, was unmoved, reasoning, “‘[e]verything else, it appears, is only domestic violence if I draw the conclusion that violating a TRO is in and of itself domestic violence. I cannot draw that conclusion. And the incidents which have been referred to simply don’t amount to domestic violence'”. Going further, Judge Gaffney stated “‘[a]ll that was brought up to the court’s attention are what are, yes, technical violations of the TRO. He picked the child up early. He talked about something at the exchange other than the child”.

In its reversal, however, the appeals court noted that “abuse” for purposes of determining whether there should be a permanent restraining order includes “engag(ing) in any behavior that has been or could be enjoined pursuant to (the Family Code). That behavior includes stalking, threatening, harassing, contacting directly or indirectly, or disturbing the peace of the protected party. In addition, the justices said, “[a]buse is not limited to the actual infliction of physical injury or assault”.

Applying this law to the facts, the Court of Appeal wrote “(Father’s) alleged violations of the TRO would not be technical violations, as suggested by the trial court. (The father’s) alleged attempted verbal communications with (the mother) were lengthy and were not limited to communications regarding (the child’s) visitation. To the contrary, if (Mother) is believed, (Father) attempted to engage (Mother) in discussions regarding their relationship and requested intimate physical contact. (The father) also wrote a letter to (the mother) and placed it in (the child’s) diaper bag. (The father) drove to (the mother’s) apartment complex, where he was photographed by (a friend of Mother). A knowing violation of a DVRO cannot be characterized ‘”‘as a de minimis and technical violation'”.

“In any event, (the father’s) alleged actions . . . would have been acts of abuse without the existence of the TRO. (The father’s) alleged actions would be obvious breaches of (the mother’s) peace, and therefore would have justified the issuance of a DVRO on their own”.

Because the father had disputed some of the allegations, the Court of Appeal did not order the trial judge to enter a permanent restraining order. Rather, the justices instructed the judge to make factual findings on whether what the mother alleged actually occurred. And if the judge finds that those acts did occur, he must grant the restraining order”.

Although the case arose in Orange County, the decision by the Court of Appeal was certified for publication, which means that it is binding precedent on all trial courts and attorneys throughout the state of California.

On a more practical note, we don’t know — from reading this opinion– what the father had done that caused the court to issue the TRO in the first place. Perhaps that conduct would have been enough to justify a permanent restraining order as well, although the judge didn’t think so and the mother’s filing of a request for a domestic violence restraining order in 2017 was based entirely on the husband’s alleged violations of the TRO.

But once a restraining order is issued, and it is served on the person to be restrained, he or she would be foolish to violate it in any respect, “technical” or not. First, if you violate a TRO, you can be arrested and convicted of the crime of violating a restraining order, even if the family court ultimate concludes that a permanent restraining order is not warranted. You could separately be held in contempt by the family court for violating a court order. And the violation of a TRO may be evidence that the TRO and the subsequent domestic violence restraining order may be justified. In other words, if you don’t do what you’re supposed to do during the limited pendency of a TRO, what does that say about your future ability to behave if there is no court order in place against you.

A restrained person may think that he or she has done nothing wrong, or that the person seeking the permanent restraining order is confused or really does not want the order to become permanent, but to act on those facts is the wrong thing to do. If, for example, the court order says do not talk to the other parent about anything other than child exchanges, that means, among other things, do not ask the other party to kiss you!

By the way, in California, domestic violence restraining orders can last up to five years. Moreover, even before the restraining order has expired, the restrained person can seek to have the restraining order become a lifelong restriction without a further showing of domestic violence.

In addition, a person subject to a restraining order may not use or possess firearms. And a statute makes it very hard for a person who has been found to have committed domestic violence against the other parent within the previous five years to get even joint custody, be it legal or physical.