Does Fair Have Anything to do With It?
Michael G. Loeffler
Michael Loeffler has practiced family law since 1975. He was a Mental Health Hearing Officer for fifteen years. He was the head
of the Area VI Developmental Disabilities Board for ten years. He graduated with highest honors from the University of California, Davis, where he was a member of Phi Beta Kappa, and from the University of The Pacific, McGeorge School of Law, where he attained membership in The Traynor Society. He is also a second degree black belt in aikido and a former marathon runner.
Despite family law courts being courts of equity, the California Family Code is not based on fairness. Clint Eastwood once said, "Fair’s got nothing to do with it."1 Perhaps that is as it should be.
This article has two main points:
- In some instances, the courts’ current practices in administering the Domestic Violence Protection Act (DVPA) end up with a result that one might consider unfair from an economic standpoint.
- Additionally, the same court practices sometimes result in orders that are not in the best interests of children.
Both the Family Code and case law emphasize that the court’s first priority is to ensure "the best interests of the child" and that this should normally include frequent and continuing contact by both parents.2 Additionally, there is a strong statutory intent in taking appropriate steps to stop domestic violence. In recent years, the term "domestic violence" has been expanded. "Domestic violence" under the Family Code, unlike the Penal Code, is defined as, among other actions, anything that "disturbs one’s emotional calm."3
The reality is that these interests sometimes conflict in DVPA proceedings. As a result, occasionally the family law courts make orders that follow the "law of unintended consequences:"4 orders that are contrary to children’s best interests, financially disastrous, and contrary to law.
Unfortunately, parties who are representing themselves, as well as family law attorneys, sometimes use requests for domestic violence protection orders in a way other than they were intended: a weapon that, while protecting against domestic violence, is also intended to place the other party in an enormous disadvantage at the very outset.
In practice, it takes little to have an ex parte temporary restraining order issued. Most judges are very liberal in granting temporary orders. This is understandable. No judge wants to be in a newspaper headline, "SPOUSE COMMITS MURDER AFTER JUDGE REFUSES TO ISSUE TEMPORARY RESTRAINING ORDER".
However, it is not necessarily correct.
Declarations in family law matters are supposed to adhere to certain standards: they must be "based on statements of fact based on the declarant’s personal knowledge."5 In practice, though, judges typically are not concerned with this when ruling on ex parte Domestic Violence Restraining Order applications: their main concern is to protect the safety of the "persons to be protected." Too often, the supporting declaration that is part of the Request for Domestic Violence Restraining Order (DV-100) is replete with hearsay, opinion, speculation, legal arguments, and conclusions.6
Further, in family law matters, declarations are not automatically in evidence, and the court is required to rule on timely objections at the hearing.7 Again, though, this does not apply to ex parte applications. In DVPA procedures, contrary to ex parte orders requested under other sections of the Family Code,8 the other party does not have the opportunity to object before the court considers these orders (Temporary Restraining Orders [DV-110]).
What is the result of all this?
Family Code section 3064(a) states that "[t]he court shall refrain from making an order granting or modifying a custody order on an ex parte basis unless there has been a showing of immediate harm to the child or immediate risk that the child will be removed from the State of California." In reality, though, the person applying for the Temporary Restraining Order, which includes custody and visitation orders prohibiting the other party from having any visitation or contact with the children (CLETS-TRO; Judicial Council Form DV-110), has a good chance of obtaining those orders: far more than one would think by reading the statute.9
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DV-110 temporary restraining orders only last until the hearing date. The hearing is required to be within twenty-one to twenty-five days, as compared with twenty days after other ex parte temporary child custody orders.10 In reality, though, in some counties—including those where a particular case is assigned to one judge for all purposes—the hearing is often little more than the judge’s continuing the temporary order in effect and setting a long cause hearing on the objection to the order many months away.
The practice varies from county to county. There is no uniformity; it depends on how each county handles its calendar. In most counties the first hearing date is set on the "short cause" (fifteen minutes or less) calendar. The court is supposed to hear live testimony.11 Typically, though, there are many matters set on that calendar, and the judge also has a "long cause" calendar (trials, or hearing which will last more than fifteen minutes) scheduled to begin later that morning. DVRO proceedings require live testimony and also usually are more than fifteen minutes in duration. So, in practice there is normally no time for live testimony. Some courts may expand the short cause calendar to have the matter heard at that point if it will take less than an hour; but, if it will take more time than that, another date and time will be assigned. Other courts will not permit anything over 15 minutes and set the matter out. How long the case is continued also varies from county to county and even within departments in the same county.
This is an extremely serious problem. The gravity of this situation cannot be overemphasized. One attorney recently referred to this as "a writ of mandate waiting to happen." At the very least, there should be rules in place so that the practice does not vary from county to county, and from department to department.
Concerning custody and visitation, there are orders that have great significance. The ex parte order becomes the "status quo." Those orders are no longer technically ex parte orders; there has been a "hearing" of sorts. But, the effect is still the same. At a subsequent long cause hearing on custody and visitation, the "status quo" is something the court will find extremely important.
If the temporary order includes the children as "protected persons," then the "person to be restrained" may be reduced to having supervised visitation at a facility for an hour a week or less. This may last for many months, causing total disruption to children. This may not be in the "best interest of the children" if, prior to the temporary order, that parent was an important part of their lives (especially if the allegations of child abuse, so easily made in the moving papers, end up not being true). One judge recently referred to this as "…often the wrong result…a topic that is most important…"
There are several possible solutions to this particular problem (relating to the significant interruption of the parent-child relationship). Some examples include: assigning different judges to hear the long cause trial on an expedited basis; or a commissioner; or a "floating judge" for this specific purpose.
If there are allegations of child abuse or neglect, child custody recommending counselors are "mandated reporters" and are required to contact Child Protective Services once they learn of such an allegation. If the person alleging domestic violence or child abuse files a police report and the District Attorney charges the person with a crime, the person will not be able to take the witness stand against the DVRO while criminal charges are pending without waiving his or her Fifth Amendment rights.
The child’s relationship with that party may have to be rebuilt over time, if that party eventually obtains orders for more time. Depending upon the age of the child, that may not be possible. Of course, there is always the possibly that, despite standard court orders to the contrary in this sort of high conflict litigation, the other parent will alienate the affections of the child.
Further, restrained person’s emotional state may (and usually is) one of depression and deep anxiety from the moment that the temporary orders go into place. The relationship between the parents will be one of deep resentment and mistrust, which will affect their ability to co-parent in the future.
What can the "person to be restrained" do if there are allegations of child abuse or neglect, which eventually turn out to be either false or else greatly exaggerated? Experienced practitioners all know that, unfortunately, this occurs.
There is little recourse. The party may file a motion and obtain "reasonable money sanctions, not to exceed all costs incurred by the party accused as a direct result of defending the accusation, and reasonable attorney’s fees incurred in recovering the sanctions, against the party making the accusation," if they can prove that the accuser "knew it (the false accusation) to be false at the time the accusation was made."12
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In theory, this is laudable. In practice, though, it is exceedingly difficult to prevail, let alone collect. How does the falsely accused person prove that the party making the accusation "knew it (the false accusation) to be false at the time the accusation was made…"? This means that in order to prevail, the party falsely accused has to prove the accuser’s past state of mind.
Often the person making the false allegation will say that the child told them what occurred. That may be impossible to disprove. Again, this gets back to the initial problem of the court considering hearsay, including statements allegedly made by the child, in the first instance.
Separate and apart from the issue of the effect on child custody and visitation, the potential impact on the parties’ economic situation can be enormous. The "law of unintended consequences" is still at work.
The "person to be restrained" is often ordered to immediately vacate the family residence. This sometimes results in a situation where they have no place to stay and no time to remove any personal possessions. With the current California lease market, if there are any available rentals, the landlord will typically require a full credit check, which takes some time to process; also, a one-year written lease; also, payment of a security deposit. Many persons are unable to do this. As a result, they often have to move in temporarily with their parents.
Besides having the additional cost of a lease, if there are children, the "person to be restrained" is faced with temporary child support and spousal support orders. In some counties, the economic hearing is shortly after the initial custody orders. In other counties it is the same day. Having little timeshare, the person may be faced with a large child support order.
It is a very unusual individual who has both the financial resources and the patience to deal with this situation. Is this fair? Clint Eastwood was right. "Fair’s got nothing to do with it." "Restraining orders have been shown to be effective in preventing further violence,"13 but, at what cost?
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Notes:
1. Unforgiven (Warner Bros. 1992), from the scene where Clint Eastwood shoots Gene Hackman.
2. This legislative intent is expressed in many California Family Code statutes. California Practice Guide: Family Law has excellent discussions of these statutes; eg., "[a]ll custody adjudications are subject to uniform statutory standards rooted in the child’s best interests, with the primary concern being the child’s health, safety and welfare. See Cal. Fam. Code §§ 3011, 3020, 6223." William P. Hogoboom et al., California Practice Guide: Family Law, ¶ 5:96 (2017).
Cal. Fam. Code § 3020(a) provides: "The Legislature finds and declares that it is the public policy of this state to assure that children have frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, or ended their relationship, and to encourage parents to share the right of and responsibilities of child rearing in order to effect this policy, except where the contact would not be in the best interest of the children, as provided in Section 3011."
3. The Domestic Violence Prevention Act (DVPA), Cal. Fam. Code §§ 6200 et. seq., authorizes the trial court to issue a restraining order "for the purpose of preventing a recurrence of domestic violence and ensuring a period of separation of the persons involved, if an affidavit…shows, to the satisfaction of the court, reasonable proof of a past act or acts of abuse." Cal. Fam. Code § 6300.
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 or 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 Cal. Fam. Code § 6320. Cal. Fam. Code § 6302; see Nakamura v. Parker, 156 Cal. App. 4th 327, 334 (2007).
Cal. Fam. Code § 6320 provides, in part, that "[t]he court may issue an ex parte order enjoining a party from 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, or other named family or household members."
Cal. Fam. Code § 6320 broadly provides that "disturbing the peace of the other party" constitutes abuse for purposes of the DVPA. However, the DVPA does not provide any definition for the phrase "disturbing the peace of the other party."
Case law, starting with In re Marriage of Nadkarni, 173 Cal. App. 4th 1483 (2009), has interpreted "disturbing the peace of the other party" to include "conduct in destroying the mental or emotional calm" of the other party. "Thus, the plain meaning of the phrase ‘disturbing the peace of the other party’ in section 6320 may be properly understood as conduct that destroys the mental or emotional calm of the other party." Nadkarni, 173 Cal. App. 4th at 1497.
4. As stated in Wikipedia, "In the social sciences, unintended consequences (sometimes unanticipated consequences or unforeseen consequences) are outcomes that are not the ones foreseen and intended by a purposeful action." Unintended Consequences, Wikipedia (May 28, 2018) https://en.wikipedia.org/w/index.php?title=Unintended_consequences&oldid=842740192 (last visited May 28, 2018).
5. Cal. Ct. R. 5.111(b)(2).
6. This practice by attorneys is so pervasive in family law declarations in general, that several appellate decisions have addressed the subject. "Speculative opinions, legal arguments, conclusions and citation to authorities ‘ventriloquized’ via client’s declaration is ‘a sloppy practice which should stop,’ not to mention ‘sanctionable misconduct." In re Marriage of Davenport, 194 Cal. App. 4th 1057, 1516 (2011); In re Marriage of Heggie, 99 Cal. App. 4th 28, 30 (2002).
7. In re Marriage of Shimkus, 244 Cal. App. 4th 1262 (2016).
8. The normal process is a 24-hour notice procedure, requiring that the court will not consider the request until 24 hours after the opposing party or attorney has received notice of the same. The notice must be given unless there are certain exceptions, which apply:
- Notice would frustrate the purpose of the orders sought.
- Applicant would suffer immediate and irreparable harm before the court orders could issue.
- No significant burden or inconvenience to the responding party would result.
- The orders requested are those permitted without notice.
- The applicant has made reasonable, good faith efforts to give notice, as follows; (must be explained).
The pleading used is varies slightly from county to county. In Stanislaus County, where I practice, it is entitled "Declaration Re: Notice Upon Ex Parte Application For Orders." The declarant has to state under penalty of perjury that he/she has given 24-hour notice of the ex parte application, and state the details of any response; or else, has to state why he/she has not given notice of the application for ex parte orders. This applies in child custody and visitation orders as well, except for Emergency Protective Orders (EPOs).
However, if the custody and visitation order request is included in the Request for Domestic Violence Restraining Order, DV-100, this 24-hour notice procedure is not required.
9. I disagree with William P. Hogoboom et al., California Practice Guide: Family Law ¶ 5:104.2 on this point:
"PRACTICE POINTER: As a practical matter, ex parte custody/visitation orders are rarely granted except in the most exigent circumstances of imminent child endangerment or risk the other parent may abscond from California with the children… "
10. Cal. Fam. Code § 3062(a). At the hearing, the court must receive live, competent testimony that is relevant, unless there is a stipulation of the parties or on a showing of good cause. Cal. Fam. Code § 217 was passed after Elkins v. Super. Ct., 41 Cal. 4th 1337 (2007). For an excellent discussion on this issue, see Claudia Ribet and Karen Silver, Decision may unleash tsunami on family law practice, S. F. Daily J., April 27, 2018. Ms. Ribet and Ms. Silver state, quite correctly, "Family law judges may hear numerous disputed cases each day, only to return home with voluminous documents to review for the next day’s equally as long and challenging calendar."
There is nothing quite as unsettling for an attorney spending many hours working on pleadings, declarations, and points and authorities for a particular motion, only to have the judge state, "So, what do we have here?" when the case is called for hearing.
As further explained in detail in that article, "This scenario (i.e., hearings based on declarations without any live testimony) however, could change soon" based on the decision in In re Marriage of Swain, 21 Cal. App. 5th 830 (2018).
11. The court generally must receive relevant live, competent testimony at the hearing but there is a good cause exception. William P. Hogoboom et al., California Practice Guide: Family Law, ¶ 5:326; Cal. Fam. Code § 217(a),(b); Cal. R. Ct. 5.113(a).
12. Cal. Fam. Code § 3027.1. I have practiced family law since 1975. I have never seen or heard of a motion for sanctions filed under section 3027.1.
13. Alyce D. LaViolette and Warren R. Shiell, Recurring Questions under the Domestic Violence Prevention Act, 39 Fam. L. News 3 (2017).