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Court must Decide If Both Parties Acted as an Aggressor Before it Can Order Mutual Restraining Orders

Posted By Anthony P. Azemika, Esq.   |   Comments (0)
Family Law, Divorce, Child Custody & Visitation, Legal Cases,



A California Court of Appeals has ruled that separate restraining orders granted by Trial Court in response to separate requests by Mother and Father qualify as mutual restraining orders; and Trial Court was wrong by failing to make the required factual findings under California Family Code Section 6305 as to which party was the primary aggressor and which acted primarily in self-defense.

In the case of Melissa G. v. Raymond M., Mother and Father’ Son was born in 2010. Sometime that year, Father obtained a three-year restraining order against Mother; he did not renew the order before it expired in 2013. In the meantime, Trial Court granted Mother primary physical custody of Son. On January 18, 2017, Trial Court ordered weekly Saturday visits with Son for Father.

Father’s first visit with Son took place on January 21, 2017. According to Father, he noticed that Son’s pants and shirt “were sewn together in such a way that he could not use the bathroom.” Father took the clothing apart, noticed small cuts on Son’s body where the garments had been sewn together and saw a tape recorder fall out. When Father brought Son back at the end of the visit, Mother accused him of stealing the tape recorder and hit Father several times with her fist, bruising his cheek and eye. She also allegedly threw cake in Father’s face and on his car. In Mother’s version of the incident, she claimed to have photos of Son’s clothing refuting Father’s claim that they were sewn together, and video evidence of Father attacking her.

On February 4, 2017, Mother’s friend brought Son to the custody exchange and videotaped it on her phone. According to Father, the friend shoved her phone in his face and “called him a racial epithet.” When Father tried to leave, he saw Mother and a man waiting outside, and returned to the police station where the exchange took place. Once inside, Father said, Mother’s friend spit on him, and he knocked her phone out of her hand. In her declaration, Mother denied Father’s version of the event and claimed to have video to prove her version.

On March 4, 2017, Father showed up at the police station, but Mother did not. Father claimed that he then went to Mother’s house, where she assaulted him. He then brought police to her house, but she was no longer there. She showed up with a group of people after the police left and told Son to run to his grandmother’s house when Father approached her. Mother then grabbed Father’s arm, bit him, punched and scratched his face, leaving teeth marks and other bruises that were documented by the police when they filed a report. Father also asserted that Mother called him later to ask if it hurt when he bit himself. Mother’s version of the incident had her calling Talking Parents to say that she was canceling Father’s visit because of his behavior. She said she was home when Father showed up with a police officer, but then called 911 and spoke to another officer, who came to her house and left a card describing the incident and giving her a number to call. Mother denied inflicting any physical harm on Father and contended that Father “had a long history” of blaming his own assaults on the other person. Later, Mother claimed that she had received hundreds of blocked calls and voicemails from Father or “a woman using a voice changer.”

On March 8, 2017, Father filed a request for a Domestic Violence Protection Act restraining order against Mother and for sole legal and physical custody of Son; Father attached a declaration detailing the circumstances surrounding the visitation problems. In response, Mother sought an order that Father’s visits with Son be supervised.

On May 4, 2017, Mother filed her own request for a D.V.P.A. restraining order against Father and for an order curtailing his visitation. Mother attached 12 pages of details regarding the visitation problems, along with several exhibits. Father filed his opposition to her request.

On May 23, 2017, Trial Court held a hearing on both requests, heard Mother testify that she recognized Father’s voice on the calls and voicemails, and discussed the evidence on the parties’ declarations. When Mother stated that she wanted Trial Court to at least order mutual restraining orders, Father’s counsel reminded Trial Court that it must find that both parties acted as primary aggressors and neither acted primarily in self-defense before ordering mutual orders. Father’s counsel argued that Mother’s versions of events were not credible, while Father’s were.

Trial Court reasoned that it did not have to analyze which party was the aggressor because there had been independent acts of domestic violence. Trial Court then issued two restraining orders, one against each party, saying that it was “just going to order these two people to leave each other alone.” Trial Court made no findings of fact as to which party was the primary aggressor and which acted primarily in self-defense. Trial Court declined to change custody and then made orders regarding implementing existing custody orders. After the hearing, Trial Court issued two separate restraining orders, each on Judicial Council Form DV-130.

Claiming that Trial Court was wrong by failing to issue factual findings as required by California Family Code Section 6305, Father appealed, and now the California Court of Appeals has reversed Trial Court’s decision and has remanded the case back to Trial Court for further proceedings.

The Appellate Court has ruled that (1) no prior published case has considered whether, after one single hearing, Trial Court may enter two restraining orders granting two separate applications without making factual findings required by Family Code Section 6305; (2) Family Code Section 6305 precludes Trial Court from making mutual D.V.P.A. restraining orders unless (1) both parties personally appear and present written evidence of abuse or domestic violence using mandatory Judicial Council forms; and (2) Trial Court makes detailed findings of facts indicating that both parties acted as a primary aggressor and neither party acted primary in self-defense; (3) Trial Court may make mutual restraining orders on one order or two separate orders; (4) Trial Court must consider provisions of California Penal Code Section 836(c)(3) regarding dominant aggressors in determining whether both parties acted primarily as aggressors; (5) legislative history and case law support a requirement that Trial Court must make detailed findings pursuant to Family Code Section 6305, regardless of whether parties’ two requests arise from the same incident or different incidents; (6) the two restraining orders issued by Trial Court here constitute a mutual order and trigger Family Code Section 6305 requirements; (7) Trial Court erred by issuing mutual order without making findings required by Family Code Section 6305; and (8) substantial evidence supports finding that Father was primary aggressor in at least one incident. The Appellate Court reverses mutual restraining orders and sends the case back to Trial Court for Trial Court to make factual findings and to reconsider the parties’ restraining order requests based on those findings.