The Further Expansion of – and Potential Judicial Guardrails to – California’s Notions of Domestic Violence in Family Law

 

By Gregory W. Herring

Over the past twenty or so years, the Legislature has enacted a “hodgepodge” of confusing and sometimes contradictory provisions, as California Family Law guru, Garrett Dailey, has put it, in its rush to enact one domestic violence (“DV”) statute after another.

As of January 1, 2021, coercive control is a newly codified form of DV under the Domestic Violence Protection Act (“DVPA”) (Fam. Code §6200 et seq.). Family Code section 6320 provides for ex parte orders enjoining harassment, threats, and violence. Under the statute, “coercive control” is defined as:

“… a pattern of behavior that in purpose or effect unreasonably interferes with a person’s free will and personal liberty. Examples of coercive control include, but are not limited to, unreasonably engaging in any of the following:

  1. Isolating the other party from friends, relatives, or other sources of support.
  2. Depriving the other party of basic necessities.
  3. Controlling, regulating, or monitoring the other party’s movements, communications, daily behavior, finances, economic resources, or access to services. 
  4. Compelling the other party by force, the of force, or intimidation, including threats based on actual or suspected immigration status, to engage in conduct from which the other party has a right to abstain or to abstain from conduct in which the other party has a right to engage”.

As of the same date, the standard for “disturbing the peace of the other party” sufficient to warrant DV orders is “conduct that, based on the totality of the circumstances, destroys the mental or emotional calm of the other party.” (Fam. Code §6320 subd. (c).) This grew from 2014’s Burquet v. Brumbaugh 223 Cal.App.4th 1140, 1146, which rejected arguments that the Penal Code’s stricter definition ought to apply.

In making these amendments, the Legislature was concerned about expanding the scope of abusive conduct beyond what was necessary, taking care to “… limit the application … to clearly abusive behaviors.” (Senate Judiciary Committee Analysis, cited by In re Marriage of L.R. and K.A., Cal. App., July 27, 2021, D077533 (not published).) The trial courts are left with the hard work of analyzing and applying these arguably amorphous notions, including in the context of complex child custody disputes (under Family Code sections 3020, 3111, and 3044, DV is an express factor in any custody matter).

As the Legislature continues to find it popular to expand notions of DV, its above comments may invite “guardrails” by the courts.

 

See Also: Child Custody Protections in Cases Involving Domestic Violence

 

Gregory W. Herring
Certified Specialist, Family Law
The California Board of Legal Specialization of the State Bar of California
Fellow of the American Academy of Matrimonial Lawyers
Fellow of the International Academy of Family Lawyers
Writer’s direct email: [email protected]
Santa Barbara - Ventura County - San Luis Obispo