Domestic Violence is a Very Bad Thing
JJ and MF began dating in December of 2007 and started living together in April of 2009. MF, according to JJ, began physically abusing her when she was about seven months pregnant with his child. The physical abuse escalated after their son was born including numerous chokings. In June of 2010, JJ moved out of their home with their son. MF had slapped her, kicked her and threw her into a glass door. She had choking marks on neck and numerous cuts all over her body from the broken glass door. After she moved out, MF or his friends would come around demanding she hand over their son to him. MF also sent threatening text messages, such as: "When I see you I'm going to f--- you up"; "You're a stupid b----, you're going to suffer"; and "I'm going to hurt your money income. Joint custody means no child support and welfare." She then applied for a restraining order and moved to a confidential location. The Court issued a temporary restraining order (TRO), and then later issued a three year restraining order against MF.
In January of 2012, MF asked the Court to remove the restraining order because he said he didn't know about JJ's request for the order and therefore wasn't in court to argue his side. He said he never harmed nor threatened to harm JJ. The court granted MF's request and removed the restraining order, because JJ did not appear to argue against the removal.
In September of 2012, JJ learned that the restraining order had been removed and requested that the Court reinstate it. She said she did not receive notice of MF's court date, so she did not attend to present her side of the argument. The Court record showed that the address MF claimed was JJ's address (and where he provided her with notice of his hearing date) was actually a superior court, so he could not have given her notice of the hearing date. The court set another hearing date in October of 2012.
In 2011 and 2012, MF rarely saw their son, but when he did, it was through a mutual exchange of the boy at JJ's grandmother's house. On October 7, 2012, but before the hearing date, MF visited with their son and returned their son to JJ's grandmother's house. However, he failed to bring the child's jacket with him. Upon noticing the missing jacket, the grandmother contacted MF and asked him to return the jacket. He said he would return it the next day. The grandmother asked him to return it immediately, because of the chilly weather, the child had no other coat, the child had a cold, and the coat was needed for pre-school the following morning. MF hung up on JJ's grandmother and did not return the jacket.
Later that evening, JJ contacted MF's mother and asked to have the jacket returned. MF's mother hung up on JJ. JJ made repeated telephone attempts to MF's mother to get the jacket back, but MF's mother did not answer her phone. At about 9:30pm, JJ was attempting to leave her grandmother's house with their son, when MF appeared with his wife and their son's jacket. JJ took the jacket, but she could not leave, because MF's car was blocking her exit. MF then began yelling at JJ that he wanted his son and tried to take the child away from JJ. JJ pushed MF and screamed at him to get away from her. MF grabbed her by the neck while his wife began punching JJ in the face. The wife also removed her shoe and began hitting JJ with the shoe. The entire time, the child was crying. Finally, JJ's grandparents and their neighbors intervened and forced MF and his wife to leave. JJ called the police and a police report was filed.
JJ filed another request for restraining order and the court heard the matter the same day MF responded. The court found that there had been a "mutual altercation." The court noted that JJ had pushed MF as he approached her, and that JJ's numerous phone calls to MF's mother were harassing. The court also noted that MF had a history of abusing JJ. Therefore, the court entered a mutual restraining order, even though neither party requested it, stating that both parties acted with aggression. The Court made its order under the Domestic Violence Protection Act.
The appellate court reversed the trial court's mutual restraining order. The appellate court found that JJ's pushing of MF was in self-defense and in defense of her son, and that the phone calls to MF's mother were not harassing, because of the desperate need for the child's jacket. It upheld the restraining order solely against MF.
The Domestic Violence Protection Act (DVPA) was enacted as a means to prevent violence against spouses, co-habitants (and former spouses and cohabitants), persons with a dating or engagement relationship, a close family relationship of the parties, and/or a child involved with any of the parties. It allows for protective orders to prevent violence and the enforcement of those orders.
In this case, although the DVPA does allow judges to order mutual restraining orders, even if neither party requests it, if both parties act as aggressors. Since JJ was not an aggressor, the court had no authority to order mutual restraining orders.