What Is Considered Domestic Violence In California Family Court?

Created by “MesserWoland.” Licnesed under CC BY-SA 3.0

In California, the Domestic Violence Prevention Act (“DVPA”) authorizes a 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, upon a showing of proof of a past act or acts of abuse. (Family Code § 6300, et seq.)

But what constitutes “abuse” in the eyes of the Court?

In popular culture, we often see domestic violence depicted exclusively as physical assault. The 2002 film, Enough, starring Jennifer Lopez comes to mind. However, domestic abuse encompasses a much wider range of conduct, and the Family Code definition of abuse reflects that fact.

Family Code Section 6203 provides that abuse may mean any of the following:

• intentionally or recklessly causing bodily injury, or attempting to cause bodily injury,

• sexual assault,

• placing a person in reasonable apprehension of imminent serious bodily injury to that person, or to another person, or

• engaging in any behavior that may be enjoined under Section 6320, which includes: molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, credibly impersonating (as described in Penal Code 528.5), falsely personating (as described in Penal Code § 529), harassing, telephoning, (including making annoying telephone calls as described in Penal Code § 653m), 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, of other named family or household members.

While the definition of abuse in Section 6203 includes actual physical acts, it also includes a number of indirect behaviors, such as destruction of personal property, as well as non-physical behaviors.

For example, stalking and harassing, threatening, annoying telephone calls or contact by other means, like mail – or in today’s world, electronically via text, email or the Internet. Harassment has been defined in the Penal Code as engaging in a course of conduct that seriously alarms, annoys, torments or terrorizes a person, and that serves no legitimate purpose. (Penal Code § 646.9(e).)

Disturbing the peace has been defined as “conduct that destroys . . . mental or emotional calm.” (In re Marriage of Nadkarni (2009) 173 CA4th 1483.) This broad definition, as interpreted by California Courts, can include a myriad of different behaviors. In Nadkarni, for example, the perpetrator read the victim’s confidential emails, and disclosed his knowledge of the victim’s social schedule to the victim as well as to third parties. In light of his past abusive conduct, these disclosures were considered threatening, and caused the victim to feel fear of future contact. This is just one example among a number of cases interpreting the meaning of “disturbing the peace.” Other types of conduct may be deemed as abusive, depending on the circumstances.

Although these categories are broad, and subject to application in the Court’s discretion on a case-by-case basis, the definition of domestic abuse is not unlimited. In the recent Fischer case, the Appellate Court held that a one-time slapping and pushing incident was not “abuse” as a matter of law, despite Section 6320’s prohibition of “striking,” “attacking,” and “battering.” (Fischer v. Fischer (2018) 22 Cal.App.5th 612, 622.) The perpetrator’s mental state, the factual context, and other factors are properly considered by the Court.

Anyone who is a victim of any of the conduct described in the Code, perpetrated by a family member or a person with whom they share or shared an intimate relationship, should contact the police immediately and consult with a family law attorney experienced with Domestic Violence cases. By the same token, anyone accused of committing domestic abuse, or who is served with a Request for a Domestic Violence Restraining Order, is well advised to speak with a family law attorney experienced in litigating Domestic Violence cases.