When a Parent’s Action Did Not Rise to the Level of Domestic Violence

In 2015, Mother [M] petitioned to end her marriage to Father [F].  The dissolution was granted in 2018.  The parents have a daughter [D] born in 2011.  M and F share joint legal custody of D, and F has sole physical custody.  In fact, M has no over-night visitations with D, and M must be with a monitor to visit with D at all.

In 2019, M went to the visitation center to visit with D.  A short time later, D came into the center, but vomited.  M was furious and told F that he had to take D to an urgent care clinic immediately.  (M is a physician.)  After much arguing, F took D to urgent care, even though D was scheduled to see her own pediatrician the following morning.

At urgent care, M continued to argue with F and argue with the treating physician.  She insisted that she be allowed in the examining room because she had joint legal custody.  Although a security guard tried to intervene between M and F’s argument, he called the San Diego Police Department to stop the argument.  (Note, the treating physician diagnosed D with strep throat and advised F to take D to visit her own pediatrician the next morning.)  During the entire time D was crying and screaming that she wanted to be with M.  M also was recording the incident on her cell phone and shoving the phone in F’s face.

F and M took their argument outside, where the fight escalated.  Three police officers appeared, including their sergeant, and tried to de-escalate the situation.  F agreed to let M take D home with her to stop the fighting.  He then filed a domestic violence restraining order [DVRO] against M claiming, “…[M] argued, yelled, accused, videotaped, harassed, and bullied three (3) grown men who were employed by the San Diego Police Department, all while holding [D] in a death grip.  [M] made four ‘faux attempts’ to put the child in his car, each time the child screamed at the top of her lungs and . . . refused to go in the car seat.”  F also advised the court that M’s behavior was continuous, and this was not the first episode she had initiated.   The trial court issued a temporary restraining order against M.

In February of 2020, the trial court held a hearing on the DVRO.  After testimony from M, F, the visitation center monitor, and one of the police officers at the 2019 incident, the court granted F’s request, finding [M’s] conduct disturbed [F’s] peace and was, therefore, abusive.  The court issued a three-year DVRO against M for F’s protection and included D as a protected party.  M appealed.  The Appellate Court agreed with M and reversed the trial court’s decision stating:

“…We conclude Mother’s conduct—although demonstrating poor co-parenting—did not rise to the level of destroying Father’s mental and emotional calm to constitute abuse within the meaning of the Domestic Violence Prevention Act (DVPA) (Fam. Code,2 § 6200 et seq.).

“The DVPA defines “ ‘abuse’ ” as intentionally or recklessly causing 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, or engaging in any behavior that could be enjoined pursuant to section 6320. (§ 6203, subd. (a).) …

“Effective January 1, 2021, section 6320 was amended by Senate Bill No. 1141 (2019-2020 Reg. Sess.) (Senate Bill 1141) to add subdivision (c), which defines ‘‘disturbing the peace of the other party’ as ‘conduct that, based on the totality of the circumstances, destroys the mental or emotional calm of the other party.’ (§ 6320, subd. (c); Stats. 2020, ch. 248 (Sen. Bill 1141), § 2, italics added.) The “conduct may be committed directly or indirectly, including through the use of a third party, and by any method or through any means including, but not limited to, telephone, online accounts, text messages, internet-connected devices, or other electronic technologies.” (§ 6320, subd. (c)…

“We conclude the trial court abused its discretion in finding [M’s} conduct ‘disturbed’ [F’s] peace within the meaning of the DVPA because her conduct did not rise to the level of destroying [F’s] mental and emotional calm within the meaning of the DVPA. Our decision to reverse should not be interpreted as condoning [M’s] behavior, including any violations by her of child custody orders. It does not. But under the laws governing child custody (§ 3000 et seq.), if a court determines that a parent’s behavior is detrimental to a child’s health, safety, or welfare, then the court has broad discretion to control the parent’s interactions through the issuance or modification of child custody and visitation orders.”

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