Evidence of Subsequent Abuse Can Be Asserted After Restraining Order Request

Wife [W] and Husband [H] married in 2002.  The couple, originally from Nigeria, have six children.  In 2018, W filed for divorce from H.  At the time of filing the children’s age were 3 to 13.  W was a stay-at-home-mom throughout the marriage and primary caregiver of the children. 

In W’s filing papers she stated the H had abused her physically and emotionally throughout their marriage.  She requested spousal and child support, and a move-out order for H because he continued to abuse her and the children.  She also filed a Domestic Violence Restraining Order [DVRO] against H because of the abuse.

The parties went through many status conferences and hearings on their issues, but nothing was ever resolved including the DVRO.  The court awarded her a temporary restraining order [TRO] and ordered H to stay five yards away from W.  H forced W out of their home (according to her), so she and the children moved into an apartment.  However, she requested she and the children be allowed to live in their home and H be forced to move out.

The DVRO request was finally heard in 2019.  W was in pro-per and answered all the judge’s questions and included additional information of abuse after the DVRO filing.  The judge would not allow her to include the information because it was not part of her original filing.  The judged stated: “You need to support this request with what took place before you filed this request. What happened [after] is not relevant to this request.”  The court then denied her DVRO request, and W appealed. 

The Appellate Court reversed the trial court:

“While a trial court should, of course, hear and evaluate the evidence relating to incidents set forth in a petitioner’s request, evidence of post-filing abuse is also relevant, particularly when that abuse occurs after a temporary restraining order has been issued, as was the case here. The purpose of a domestic violence restraining order is not to punish past conduct, but to ‘prevent acts of domestic violence [and] abuse’ from occurring in the future…

“The trial court’s categorical refusal to consider post-filing evidence of father’s alleged abuse and violation of the TRO, based solely on the ground that the conduct had occurred after mother filed her DVRO application, was legal error and therefore constituted an abuse of the court’s discretion. The court’s evidentiary cut-off violated the DVPA’s mandate that a court ‘shall’ consider the ‘totality of the circumstances’ in determining whether to issue a restraining order.  (§ 6301, subd. (c) [‘The court shall consider the totality of the circumstances in determining whether to grant or deny a petition for relief.’]; see also § 6340, subd. (a)(1) [the court ‘shall consider whether
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