Practitioner’s Perspective: Domestic Violence Laws

October is not just known for pumpkin spice lattes and Halloween. In 1989, former President George Bush proclaimed October as the month for National Domestic Violence Awareness. An entire month each year dedicated to domestic violence provides legal practitioners and others in the justice community a chance to not only acknowledge the pervasiveness of domestic violence, but to explore ways to advocate for domestic violence victims. October also provides victims — who are now living as survivors —with the chance to share their stories in the hopes of continually shedding light on the dangers of domestic violence.

In 1993, California adopted the Domestic Violence Prevention Act (DVPA), which gave courts the power to order immediate legal protection, including restraining orders and other injunctions to protect survivors and prevent future abuse. See Cal. Fam. Code §§ 6200 et seq.

In 1995, the O. J. Simpson trial, a seminal California case, captivated the nation. Many people have now heard the infamous phrase “If the glove doesn’t fit, you must acquit!” proclaimed by attorney Johnnie Cochran during the trial, and remember the “dream team” of lawyers representing Mr. Simpson. However, the trial also revealed a cycle of domestic violence in the Simpson home through various forms of evidence, including photographs and a 911 call. The intimate and shocking details opened a discussion for the legal community and, more importantly, the nation, regarding a once taboo topic.

Today, domestic violence remains a problem, as exemplified by the recent murder of Gabby Petito, speculated to be the product of intimate partner violence. However, California laws around domestic violence have substantially progressed over the past decade, providing significant protections for victims and deterrents for abusers.

California’s Domestic Violence Laws

California law defines domestic violence as abuse perpetuated against spouses, cohabitants, former cohabitants, co-parents, and “any other person related by consanguinity or affinity within the second degree.” Within the last decade, multiple California family law cases have provided family law practitioners and judicial officers with a broader view of domestic violence. See e.g., Perez v. Torres-Hernandez (2016) 1 Cal.App.5th 389, 398 (“the definition of abuse under the DVPA is much broader.”). Indeed, the expanded view of what constitutes domestic violence has expanded to include not just physical violence but conduct that “disturbs the peace of the other party.” See Altafulla v. Ervin (2015) 238 Cal.App.4th 571, 578; In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1495–1499. A person can seek an ex parte order enjoining a party from “disturbing the peace of the other party,” and courts are fortunately starting to recognize that domestic violence is a cycle.

In 2020, the Family Code was amended to provide that “coercive control” constitutes a form of domestic abuse under the DVPA. Acts such as isolating someone from their friends and family or controlling someone’s movement are now considered “coercive control” and constitute abuse. See Fam. Code § 6320(c). For example, hacking into a victim’s email account or social media and then disseminating the victim’s private information is recognized as domestic violence and is eligible for a restraining order.

A legal finding that an individual has perpetrated domestic violence has harsh penalties under California law. For example, California applies a rebuttable presumption that an award of sole or joint legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child. In addition, as of 2019, a knowing violation of a temporary restraining order is more than a “de minimis and technical violation,” and is grounds for issuance of a domestic violence restraining order. N.T. v. H.T. (2019) 34 Cal.App.5th 595, 603.

Local Domestic Violence Resources

San Diego County continues to provide and improve resources for domestic violence victims. In the criminal field, law enforcement officers responding to domestic violence calls are able to issue an emergency protective order on the scene to the victim, providing a window of immediate protection for the victim to then seek a family law restraining order. District Attorneys can also request a criminal protective order if a defendant is charged with Penal Code 273.5 or other similar offenses that involve domestic violence. The San Diego District Attorney also has a Victim Assistance Program. Victims are able to obtain a copy of a police or incident report free of charge, and service of restraining orders is available for free through the San Diego Sheriff upon request of a protected party.

San Diego County is the home to multiple organizations and nonprofits devoted to assisting victims of domestic violence, including The Family Justice Center and North County Family Violence Prevention Center. The San Diego Superior Court offers legal clinics and other services relating to domestic violence issues. The San Diego District Attorney also offers a variety of resources, including shelters and hotlines (1-800-799-7233 or (TTY 1-800-787-3224)).

Legal practitioners who are involved with domestic violence cases should do their own research. It is a complex area, both from a legal and psychological standpoint. The more we can educate ourselves in this complex field, the better we can understand and assist clients. I applaud survivors of domestic violence who are practicing lawyers or judicial officers that continue to share their stories and encourage others to come forward.