Physical Separation is No Substitute for a DVRO

Domestic violence (also known as “intimate partner violence”) is a growing epidemic. This is even more of a concern given the number of incidents on the rise since the COVID-19 pandemic. In California alone, 34.9 % of women and 31.1% of men experience intimate partner physical violence, intimate partner sexual violence and/or intimate partner stalking in their lifetimes. [1] This article discusses how California courts define domestic violence as well as explain the intricacy of a domestic violence restraining order (or “DVRO”). We also highlight a recent case that solidifies just how important a DVRO is to protect survivors of domestic violence.

What Is Domestic Violence?

In short, domestic violence occurs when there is abuse or threats of abuse between people in an intimate relationship. This can be married or domestic partners, those who are dating or used to date, live together, have a child together, or are closely related by blood or marriage. The Domestic Violence Prevent Act defines “abuse” as physically hurting or trying to hurt someone, intentionally or recklessly; sexual assault; making someone reasonably afraid that they or someone else are about to be seriously hurt; OR behavior like harassing, stalking, threatening, or hitting someone; disturbing someone’s peace; or destroying someone’s personal property. (Fam. Code, § 6200 et seq.) A survivor of domestic violence can seek a myriad of protections, most notably a DVRO.

What is a Domestic Violence Restraining Order?

A domestic violence restraining order is a court order that helps protect people from abuse or threats of abuse from someone they have a close relationship with. Unlike other protections that may be only temporary, a DVRO can provide permanent protection and additional safeguards for a survivor against their abuser.

But what happens if a survivor shares children with their abuser? What if the survivor moves out of the family home and is no longer in physical contact with their abuser? Do they still need legal protection?

A Recent Case Says YES!

In In re Marriage of F.M & M.M., [2] the trial court improperly denied mother’s request for a DVRO on the grounds that the parents no longer shared a household. The trial court reasoned that the abuse had occurred simply because the parties were living together and by moving away, the abuse will subside. However, at the same time, the trial court repeatedly stated that the parties needed to “stay away from each other” which the court presumably believed they could do without a court order in place. In other words, the court was telling Mother she didn’t need the legal protection of a restraining order because she had moved out of the toxic environment that resulted in her abuse.

However, this was not the case at all.

Mother argued that because the parties have six children together, further interactions between the two were unavoidable and she appealed the lower court’s ruling. The appellate court ended up agreeing with Mother and reversed the lower court’s order. In their holding, the appellate court explained that the parents still had to coparent the children, and even with separate residences, there was ample evidence that demonstrated an ongoing severe conflict between the parties. Physical separation between a victim and their abuser does not provide the same protections that a DVRO does.

This case truly solidifies that domestic violence survivors must not be denied the critical protection of the DVRO merely because they have succeeded in extracting themselves from the immediate risks posed by living with their abuser. If you or a loved one is a survivor of domestic violence and want to learn more about the protections at your disposal, call us at Mello & Pickering, LLP and our experienced attorneys are ready to assist you.

[1] Smith, S.G., Chen, J., Basile, K.C., Gilbert, L.K., Merrick, M.T., Patel, N., Walling, M., & Jain, A. (2017). The national intimate partner and sexual violence survey (NISVS): 2010-2012 state report. Atlanta: National Center for Injury Prevention and Control, Centers for Disease Control and Prevention. Retrieved from https://www.cdc.gov/violenceprevention/pdf/NISVS-StateReportBook.pdf.

[2] In Re Marriage of F.M & M.M, (2021) No. A160669, 2021 WL 2254004 (Cal. Ct. App. May 28, 2021).