FVAP has achieved significant legal victories since its inception only four years ago. We have won 67% of the appeals we have brought to date, far above the statewide average of 21%. We have won 100% of the appeals we have defended.
In addition to securing these legal victories for our individual clients, which are crucial for their safety and that of their children, we have also obtained publication of many cases that are now binding precedent in all trial courts across California. Securing publication of decisions helps FVAP impact not just our own clients, but thousands of domestic violence survivors. Our legal victories include:
Counseled & Published Cases
- Sathokvorasat v. Snyder (Cal. Ct. App., Jan. 17, 2017, No. B265998) 2017 WL 167517. FVAP provided legal technical assistance to the Los Angeles Center for Law and Justice (LACLJ) in a successful appeal to the Second District Court of Appeal, which reversed the trial court's decision to deny a restraining order to a survivor of domestic abuse under the Domestic Violence Prevention Act (DVPA). In this case, the survivor requested a restraining order under the DVPA because the father of her child disturbed her peace during a child visitation exchange by blocking her movements and videotaping her. The trial court denied her restraining order request, saying that the incident did not result in reasonable apprehension of serious bodily injury. In reversing the trial court's decision, the appellate court reaffirmed that the definition of "disturbing the peace" under the DVPA is not limited to reasonable apprehension of serious bodily injury, and should also be applied if the purported conduct destroyed the petitioner's mental and emotional calm. (provided legal technical assistance)
- In re Marriage of Fregoso and Hernandez (2016) 5 Cal.App.5th 698. This is the first case to clarify that a restraining order may be properly issued even if there is a brief period of reconciliation between the two parties after a temporary restraining order (TRO) is issued. The case also explains that the testimony of one witness, even the person requesting a restraining order, can be sufficient evidence to support a Domestic Violence Restraining Order. The protected party in this case testified that the reconciliation was "part of their six-year repeated cycle of violence, gifts, forgiveness, sex, and then repeated acts of violence," and thus her explanation was consistent with the trial court's decision to issue the restraining order. (obtained publication)
- Celia S. v. Hugo H. (2016) 3 Cal.App.5th 655. After years of violent abuse from her ex-husband, the trial court granted our client a restraining order, but at the same time granted a 50% timeshare of her children to the abusive parent, circumventing the presumption against awarding joint custody to an abuser by calling this arrangement “sole custody” to our client, with “visitation” to the abuser. The Court of Appeal held that a 50/50 timeshare order is necessarily a joint custody order, and it is therefore an abuse of discretion and a subversion of the law to award such a timeshare without applying the presumption. This case clarifies that the Domestic Violence Prevention Act section 3044 rebuttable presumption remains in effect for 5 years, even if the DVRO has expired. It is also the first published opinion to hold that Family Code section 3011(e)(1) requires a trial court to state, in writing or on the record, the reasons for its determination that a parent has overcome the section 3044 presumption, thus clarifying the interplay between section 3044 and section 3011. (counsel; obtained publication)
- Ellis v. Lyons (2016) 2 Cal.App.5th 404. This is the first California case to clarify that an out-of-state court’s finding of domestic violence triggers California’s presumption against granting custody to an abuser. Importantly, the case also holds that if a trial court relied, at all, on California’s preference that both parents have “frequent and continuing contact” with their children to rebut that presumption, the decision is “infected with legal error” and must be sent back to the trial court for a new hearing on custody. This is because the preference that both parents have frequent and continuing contact with their children is not a permissible basis for rebutting the presumption against custody to an abuser, because the state recognizes that domestic violence is detrimental to the health, welfare and safety of children. (obtained publication)
- Phillips v. Campbell (2016) 2 Cal.App.5th 844. This is the first case to discuss what constitutes a “dating relationship” under the Domestic Violence Prevention Act, which is one of the qualifying relationships that allows a person to request a DV Restraining Order. The court found that where the parties were “more than mere friends” and the evidence showed “frequent intimate associations primarily characterized by the expectation of affection” — often via text messages, which is so common in modern dating relationships — there was a dating relationship, and therefore one of the parties can file for a protective order under the DVPA. FVAP believes this case is particularly important because modern relationships in the 21st century often do not fit within traditional definitions, and victims of domestic abuse may not define their relationships in traditional terms.(obtained publication)
- De la Luz Perez v. Torres-Hernandez (2016) 1 Cal.App.5th 389. This is the first California appellate decision to hold that evidence of abuse against the protected party’s children is relevant and should be considered when deciding whether to renew a Domestic Violence Restraining Order, because abuse against their children disturbs the protected party’s peace and causes fear of future abuse to both the children and the protected party. Child abuse must also be considered when deciding whether “good cause” exists to add the allegedly abused children as protected parties to the non-abusive parent’s DVRO. The decision also confirms that fear of future physical abuse is not necessary to renew a DVRO. The concurring opinion summarizes copious social science studies on the overlap between child abuse and intimate partner abuse. (counsel; obtained publication, with support from 21 co-signers) (Click here to read a San Francisco Chronicle article about the statewide significance of this case.)
- Noergaard v. Noergaard (2015) 197 Cal.App.4th 76. In an international child abduction case where it is alleged that the child faces a "grave risk" of harm if returned to the home country, there must be a fair hearing where the trial court considers any relevant evidence about abuse and makes a decision about the important issues. The Court of Appeal decision specifically holds that where there is evidence that the status quo in the home country was abusive, speedy return is not the goal in California. (amicus counsel, obtained publication)
- Rodriguez v. Menjivar (2015) 243 Cal.App.4th 816. The opinion clarifies that controlling and coercive behavior do constitute abuse under the Domestic Violence Protection Act and that the length of time since abuse occurred has never been a basis to deny a Domestic Violence Restraining Order in California. (counsel, obtained publication)
- McIntyre v. Minkey (Cal. Ct. App. Dec. 15, 2015). The Court of Appeal held it was an abuse of discretion to deny the DVRO renewal because the future abuse feared was not physical, or because the parties previously got back together, and the opinion strongly states that warnings from the bench are not substitutes for protective orders. (counsel, unpublished)
- Sabato v. Brooks (2015) 242 Cal.App.4th 715. The Court of Appeal affirmed a three-year domestic violence restraining order (DVRO) because unwanted and harassing contacts, even without allegations of threats or violence, are sufficient to issue a DVRO, and because the restrained party failed to properly challenge the trial court's exercise of jurisdiction over him. (counsel, obtained publication).
- Cueto v. Dozier (2015) 241 Cal.App.4th 550. The Court of Appeal opinion states that the trial court abused its discretion by finding that Ms. Cueto did not have a reasonable apprehension of future abuse and therefore denying her request to renew the restraining order, where the underlying restraining order was precipitated by a "violent incident" and there was "evidence of a long and troubling history of physical abuse," and circumstances had not changed so that the opportunity and likelihood of future abuse had diminished. (counsel)
- In re M.W. (2015) 238 Cal.App.4th 1444 (the mother did not “fail to protect” her children from their abusive father when she declined a protective order 7 years earlier; obtaining an emergency protective order is “an advisable but not mandatory course of action”; and even if she had sought a protective order, she would not necessarily have received father’s background check, so she did not fail to protect her children based on his criminal history) (obtained publication)
- Isidora M. v. Silvino M. (2015) 239 Cal.App.4th 11 (trial courts may issue mutual domestic violence restraining orders only if both parties have filed requests for restraining orders) (FVAP provided technical assistance and research support to counsel, Neighborhood Legal Services of Los Angeles)
- Faton v. Ahmedo (2015) 236 Cal.App.4th 1160 (a party is not barred from requesting attorney fees where the request was not made in the initial restraining order application; a request for attorney fees arising from a domestic violence restraining order petition need not be decided with the restraining order petition) (obtained publication)
- In re Marriage of Evilsizor and Sweeney (2015) 237 Cal.App.4th 1416 (physical abuse is not necessary to issue a restraining order; disclosing intimate details of someone’s life, even if the information is legally obtained, can constitute abuse; and speech constituting abuse is not protected by the First Amendment) (obtained publication)
- In re Jonathan B. (2015) 235 Cal.App.4th 115 (stating that a domestic violence survivor can take actions after her children witness abuse to prevent the children from being removed from her custody by the state in a dependency (abuse or neglect) action for her "failure to protect" them from the effects of domestic violence) (obtained publication)
- In Re the Marriage of Fajota (2014) 230 Cal.App.4th 1487 (trial court twice abused its discretion by awarding joint legal custody without applying Family Code section 3044’s presumption that it would be detrimental to the children’s best interest to award joint legal custody to a parent who has committed domestic abuse against the other parent in the past five years. The presumption applies where there has been a finding of abuse, even if a request for restraining order has been denied.) (counsel) (published opinion)
- Eneaji v. Ubboe (2014) 229 Cal.App.4th 1457 (absence of abuse when restraining order was in place does not support denial of the renewed restraining order; to obtain renewal, petitioner need not show fear of future physical abuse—fear of any abuse is sufficient) (counsel, obtained publication)
- Carle v. Gardos (Cal. Ct. App. Sept. 11, 2014) 2014 WL 4470834 (ex-boyfriend’s pattern of repeated emailing, texting, and calling ex-girlfriend, accusing her of serious criminal conduct and threatening to jeopardize her professional license and turn her into the police, was “abuse” under the Domestic Violence Prevention Act; even if successful, attacks on her credibility would not have changed outcome of restraining order being issued) (counsel) (unpublished)
- Christina L. v. Chauncey B. (2014) 229 Cal.App.4th 731 (trial court was obligated to apply the Family Code section 3044 presumption against awarding custody of children to abuser where there was a recent restraining order against the abuser) (counsel, obtained publication)
- Keisha W. v. Marvin M. (2014) 229 Cal.App.4th 581 (trial court had jurisdiction to modify another state’s custody order on behalf of survivor of domestic violence who had fled abuse in that state, because California was the home state of the child within 6 months of the restraining order and custody proceeding filed by the survivor) (counsel, obtained publication)
- Gou v. Xiao (2014) 228 Cal.App.4th 812 (parents can seek restraining orders based on abuse against their children; abuse of a party’s child can constitute abuse of the party requesting a restraining order because it places the party in reasonable apprehension of imminent serious bodily injury to the child and disturbs the party’s peace) (amicus counsel, obtained publication)
- In re Marriage of I.T. and A.T. (Cal. Ct. App. July 23, 2014) 2014 WL 3616238 (party seeking a domestic violence restraining order need not demonstrate she was not the “primary aggressor” or that the other person was the primary aggressor) (counsel) (unpublished)
- Nevarez v. Tonna (2014) 227 Cal.App.4th 774 (court required to find only a past act of abuse to issue a restraining order, not likelihood of future abuse) (counsel)
- Vafai v. Weissman (Cal. Ct. App. June 17, 2014) 2014 WL 2736087 (upholding our client’s five-year restraining order protecting her from an ex-boyfriend who physically abused her and threatened her life) (counsel) (unpublished)
- In re Marriage of J.Q. and T.B. (2014) 223 Cal.App.4th 687 (case of first impression holding that spousal support can be awarded in a domestic violence action before a finding of domestic violence has been made) (counsel)
- J.J. v. M.F. (2014) 223 Cal.App.4th 968 (defining “primary aggressor” for the first time in the context of mutual restraining orders and holding that this determination must be made in the larger context of the parties’ relationship) (obtained publication)
- Burquet v. Brumbaugh (2014) 223 Cal.App.4th 1140 (first case interpreting the “disturbing the peace” provision of the Domestic Violence Prevent Act in the context of a non-marital relationship and telephonic, digital, and in-person contact that impacted the abuse survivor’s sense of safety and security) (obtained publication)
- Lister v. Bowen (2013) 215 Cal.App.4th 319 (any violation of a restraining order, including a non-violent violation, is very serious and gives significant support for renewal of a restraining order) (obtained publication)
- 3 additional clients who were defending against appeals brought by their abusers had their cases dismissed after FVAP agreed to represent them, important legal victories that allowed them to keep the orders of protection issued by the trial courts that kept them and their children safe from abuse.
Co-Signed Amicus Briefs
FVAP co-signed friend-of-the-court (amicus) briefs in the following cases, which were decided in favor of the party FVAP supported.
- Dollar General Corporation v. Mississippi Band of Choctaw Indians (U.S. Supreme Court affirmed that American Indian Nations’ tribal courts have jurisdiction to decide civil cases involving non-tribal members’ activities on tribal lands. FVAP co-signed an amicus brief to the U.S. Supreme Court, authored by the National Indigenous Women’s Resource Center, supporting the authority of tribal courts to exercise civil jurisdiction over non-Natives who commit acts of abuse or sexual assault on tribal lands.)
- C.S. v. W.O. (2014) 230 Cal.App.4th 23 (borrowing money to expedite transcripts for appeal is not basis to revoke fee waiver when person is on public benefits; denial of fee waiver is denial of access to courts for impermissible reason) (amicus)
- Lozano v. Alvarez (2014) 134 S.Ct. 1224 (U.S. Supreme Court held there is no equitable tolling defense in a Hague Convention case seeking to return a child to a foreign country based on concealment of the child. In a brief citing the work of FVAP Advisory Board member Jeffrey Edleson at length, amici curiae, including FVAP as co-signer, argued that concealment is often necessary because the majority of parents who take children out of the country are women fleeing domestic violence)
- Ermini v. Vittori (2d Cir. 2014) 758 F.3d 153 (father’s history of repeated abuse of both the mother and their children constituted a “grave risk” of harm to the children under the Hague Convention) (co-signed amicus brief)
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