PRACTICE AREAS
Prenuptial Agreements
Domestic Violence
Taxes
Prenuptial Agreements
Domestic Violence
Taxes
Family law attorneys at Law Offices of Warren R. Shiell represent clients in Beverly Hills, Los Angeles, Brentwood, West Hollywood, Culver City, Glendale, Pasadena, Santa Monica,
Van Nuys, Sherman Oaks, Calabasas, Burbank, Pacific Palisades, Malibu, other areas around Los Angeles and Southern California. We also represent clients from out of state and
different countries Europe, Americas and Australia among others on California divorce and family law matters. Site Map
Van Nuys, Sherman Oaks, Calabasas, Burbank, Pacific Palisades, Malibu, other areas around Los Angeles and Southern California. We also represent clients from out of state and
different countries Europe, Americas and Australia among others on California divorce and family law matters. Site Map
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
| |
| |
 |
| |
 |
| |
 |
| |
 |
| |
| |
 |
| |
 |
| PRACTICE AREAS |
| RESOURCES |
CONTACT US
| OFFICE LOCATION 1875 Century Park East, Suite 600 Los Angeles, CA 90067 tel. (310) 247-9913 fax. (310) 276-0313 |
DOMESTIC VIOLENCE AND RESTRAINING ORDER
Can you get a domestic violence restraining order if you do not call the police, go to
a shelter or do not immediately leave the relationship?
Most domestic abusers either blame the victim or argue that the victim is lying or
exaggerating. There are studies that opine that most victims will deny, minimize or recant in
both family law and criminal cases.1 Victims typically stay in abusive relationships for a
period of time before they eventually leave. In the California study cited above, a third of
victims still lived with their batterer even after a criminal domestic violence conviction.2
However, one expert says most eventually leave.
There are many reasons for staying in abusive relationships. One of the most significant is a
victim’s hope that their partner will change. Muldary coined the phrase “learned hopefulness”
to explain a victim’s ongoing belief that the abuser will change their behavior.3 In 1979,
Lenore E. Walker interviewed 1,500 women who were victims of domestic violence found a
similar pattern of abuse, for which she coined the phrase "cycle of abuse” or “cycle of
violence.” 4 The cycle hasthree distinct phases: (1) Tension Building; (2) Acute
Incident; and (3) Loving Respite or Honeymoon Phase. A relationship starts in the
honeymoon phase. Over time, tension builds. When the abuser feels that the victim is
sufficiently “hooked” into the relationship, the tension leads to an incident of verbal and/or
psychological and/or physical abuse. Following the incident of abuse, the perpetrator feels
remorseful (at least for a period of time) and tries to “hook” the victim back in to the
relationship. This is the “honeymoon” phase of peace, or at least relative peace. According to
the theory, the violence will increase in intensity and frequency over time and eventually the
honeymoon phase will disappear.5
The cycle of violence theory is one reason that victims stay with abusers. A clash of values is
another, as well as empathy and love for their partners, financial dependence, immigration
status,shame and a myriad of other issues. Staying in an abusive relationship does not mean
that the victim is not afraid or that the abuse will not re-occur. This theory can affect the burden
of proof in domestic violence cases in a number of ways.6 The abuser often makes two
similar but distinct arguments based on the victim staying in the abusive relationship. The first
impugns the credibility of the victim. The argument is that staying in the relationship or acts or
omissions by the victim such as not calling the police, fleeing or having make-up sex is
evidence that the victim is lying, meaning that the abuse never happened. They claim that the
victim is making it up to secure some advantage in the litigation. The second is that such
behavior shows that the victim is not afraid of the abuser and therefore does not need a
restraining order. Both arguments are based on a flawed understanding of the dynamics of
domestic violence and the legal framework.
It is very important to ask the right question regarding the victim of abuse’s state of mind.
Victims of abuse might say that they are not afraid of their perpetrators, although they live in a
constant state of “chronic apprehension.” A question asking how the victim feels when their
partner gets upset, sounds or looks angry will usually elicit a response of fear and
apprehension.
The “cycle of violence” theory was recently illustrated in Fregoso v. Hernandez, 5 Cal.App.5th
698 (2016). After Wife was granted a TRO, she invited Husband to a birthday party where
they had consensual sex. She never called the police after acts of abuse. She testified that
acts of abuse were always followed by gifts and sex. Her husband argued that her behavior
showed that she was not afraid of him. The Fourth District found this argument unavailing
because Wife had proved acts of past abuse and “the parties' post-TRO sex was part of their
six-year repeated cycle of violence, gifts, forgiveness, sex, and then repeated acts of
violence.”
The second argument misrepresents the requirements of the Domestic Violence Prevention
Act (“DVPA”). The purpose of the DVPA is “to prevent acts of domestic violence, abuse . . .
and to provide for a separation of the persons involved in the domestic violence for a period
sufficient to enable these persons to seek a resolution of the causes of the violence.” (Cal.
Fam. Code §6220.) The DVPA permits a court, upon a showing of “reasonable proof of a
past act or acts of abuse” (Cal. Fam. Code §6300), to issue a protective order restraining any
person from contact with another, for the purpose of preventing a recurrence of domestic
violence. (Ibid.) The court has the discretion to decide whether a fear of further abuse,
depending on the circumstances, should be taken into account in determining whether a
restraining order is necessary under Cal. Fam. Code §6220, because it may be probative as
to whether an order is necessary “to prevent acts of domestic violence, abuse.” However,
nothing in the DVPA actually requires a finding in all cases that the victim have a reasonable
apprehension of future harm before a restraining order will be issued. The focus of domestic
violence legislation has been the public policy goal of preventing future acts of domestic
violence.7
Restraining orders have been shown to be effective in preventing further violence. Studies
show that the risk of violence between intimate partners increases when they are separating
or separated.8 Therefore, the focus should not be on the victim’s subjective state of mind.
Objective factors such as the severity of the abuse and the pattern of abuse that is supported
with admissible evidence should carry more weight. Studies show that victims of domestic
violence, particularly where it rises to the level of PTSD, suffer a host of psychological,
biological, neurological, behavioral, and physiological alterations.9 Victims of domestic
violence often suffer from a form of “cognitive dissonance.”10
However, the victim’s state of mind may be relevant to whether there was a past act of abuse.
“Abuse” may include, among other things, placing “a person in reasonable apprehension of
imminent serious bodily injury to that person or another." (Cal. Fam. Code §6203, subds. (a)
(1) & (3).). Disturbing the peace has also been construed broadly to include “conduct in
destroying … mental or emotional calm.”11 Counsel for alleged abusers should therefore be
careful in addressing the victim’s subjective state of mind and apparent lack of fear as the
basis for denying a restraining order.
A related question was addressed in Rodriguez v. Menjivar, 243 Cal. App. 816 (2015) which
held that “(n)o showing of probability of future abuse is required to issue a DVPA restraining
order” (Id., at 823) when the trial court refused to issue a DVRO because the last act of
physical abuse occurred more than six months before the hearing. In Rodriguez, the trial court
clearly gave temporal proximity undue weight in light of the significant physical, emotional and
mental abuse perpetrated against mother and daughter over a period of time. While the court
of appeal cited Nakamura, “(a) trial court is vested with discretion to issue a protective order
under the DVPA simply on the basis of an affidavit showing past abuse” (Nakamura, supra,
156 Cal. App. 4th at p.334.), the next sentence in Nakamura concluded that “(s)pecifically, it
‘may’ issue an order ‘withor without notice, to restrain any person for the purpose of
preventing a recurrence of domestic violence and ensuring a period of separation of the
persons involved, if an affidavit . . . shows, to the satisfaction of the court, reasonable proof of
a past act or acts of abuse.’” (§ 6300.)” Id, at 334. While the probability of future abuse may
not be a requirement for a DVRO, it is surely relevant to the statutory question of whether a
DVRO is necessary to prevent a recurrence of domestic violence and ensure a period of
separation. The better argument is that the weight given to this factor may be less where the
abuse is severe and sustained
Contact a Los Angeles Family Law Attorney at Law Offices of Warren R. Shiell
Please call to make an appointment at 310.247.9913.
© 2020 Warren R. Shiell. All rights reserved. Los Angeles Divorce and Family Law Attorney. The information contained in
this website is an "Advertisement." It is for informational purposes only and shall not constitute legal advice. Nothing in this
Website shall be deemed to create an Attorney-Client relationship. An Attorney-Client relationship shall only be created when
this office agrees to represent a Client and a Client signs a written retainer agreement. .
a shelter or do not immediately leave the relationship?
Most domestic abusers either blame the victim or argue that the victim is lying or
exaggerating. There are studies that opine that most victims will deny, minimize or recant in
both family law and criminal cases.1 Victims typically stay in abusive relationships for a
period of time before they eventually leave. In the California study cited above, a third of
victims still lived with their batterer even after a criminal domestic violence conviction.2
However, one expert says most eventually leave.
There are many reasons for staying in abusive relationships. One of the most significant is a
victim’s hope that their partner will change. Muldary coined the phrase “learned hopefulness”
to explain a victim’s ongoing belief that the abuser will change their behavior.3 In 1979,
Lenore E. Walker interviewed 1,500 women who were victims of domestic violence found a
similar pattern of abuse, for which she coined the phrase "cycle of abuse” or “cycle of
violence.” 4 The cycle hasthree distinct phases: (1) Tension Building; (2) Acute
Incident; and (3) Loving Respite or Honeymoon Phase. A relationship starts in the
honeymoon phase. Over time, tension builds. When the abuser feels that the victim is
sufficiently “hooked” into the relationship, the tension leads to an incident of verbal and/or
psychological and/or physical abuse. Following the incident of abuse, the perpetrator feels
remorseful (at least for a period of time) and tries to “hook” the victim back in to the
relationship. This is the “honeymoon” phase of peace, or at least relative peace. According to
the theory, the violence will increase in intensity and frequency over time and eventually the
honeymoon phase will disappear.5
The cycle of violence theory is one reason that victims stay with abusers. A clash of values is
another, as well as empathy and love for their partners, financial dependence, immigration
status,shame and a myriad of other issues. Staying in an abusive relationship does not mean
that the victim is not afraid or that the abuse will not re-occur. This theory can affect the burden
of proof in domestic violence cases in a number of ways.6 The abuser often makes two
similar but distinct arguments based on the victim staying in the abusive relationship. The first
impugns the credibility of the victim. The argument is that staying in the relationship or acts or
omissions by the victim such as not calling the police, fleeing or having make-up sex is
evidence that the victim is lying, meaning that the abuse never happened. They claim that the
victim is making it up to secure some advantage in the litigation. The second is that such
behavior shows that the victim is not afraid of the abuser and therefore does not need a
restraining order. Both arguments are based on a flawed understanding of the dynamics of
domestic violence and the legal framework.
It is very important to ask the right question regarding the victim of abuse’s state of mind.
Victims of abuse might say that they are not afraid of their perpetrators, although they live in a
constant state of “chronic apprehension.” A question asking how the victim feels when their
partner gets upset, sounds or looks angry will usually elicit a response of fear and
apprehension.
The “cycle of violence” theory was recently illustrated in Fregoso v. Hernandez, 5 Cal.App.5th
698 (2016). After Wife was granted a TRO, she invited Husband to a birthday party where
they had consensual sex. She never called the police after acts of abuse. She testified that
acts of abuse were always followed by gifts and sex. Her husband argued that her behavior
showed that she was not afraid of him. The Fourth District found this argument unavailing
because Wife had proved acts of past abuse and “the parties' post-TRO sex was part of their
six-year repeated cycle of violence, gifts, forgiveness, sex, and then repeated acts of
violence.”
The second argument misrepresents the requirements of the Domestic Violence Prevention
Act (“DVPA”). The purpose of the DVPA is “to prevent acts of domestic violence, abuse . . .
and to provide for a separation of the persons involved in the domestic violence for a period
sufficient to enable these persons to seek a resolution of the causes of the violence.” (Cal.
Fam. Code §6220.) The DVPA permits a court, upon a showing of “reasonable proof of a
past act or acts of abuse” (Cal. Fam. Code §6300), to issue a protective order restraining any
person from contact with another, for the purpose of preventing a recurrence of domestic
violence. (Ibid.) The court has the discretion to decide whether a fear of further abuse,
depending on the circumstances, should be taken into account in determining whether a
restraining order is necessary under Cal. Fam. Code §6220, because it may be probative as
to whether an order is necessary “to prevent acts of domestic violence, abuse.” However,
nothing in the DVPA actually requires a finding in all cases that the victim have a reasonable
apprehension of future harm before a restraining order will be issued. The focus of domestic
violence legislation has been the public policy goal of preventing future acts of domestic
violence.7
Restraining orders have been shown to be effective in preventing further violence. Studies
show that the risk of violence between intimate partners increases when they are separating
or separated.8 Therefore, the focus should not be on the victim’s subjective state of mind.
Objective factors such as the severity of the abuse and the pattern of abuse that is supported
with admissible evidence should carry more weight. Studies show that victims of domestic
violence, particularly where it rises to the level of PTSD, suffer a host of psychological,
biological, neurological, behavioral, and physiological alterations.9 Victims of domestic
violence often suffer from a form of “cognitive dissonance.”10
However, the victim’s state of mind may be relevant to whether there was a past act of abuse.
“Abuse” may include, among other things, placing “a person in reasonable apprehension of
imminent serious bodily injury to that person or another." (Cal. Fam. Code §6203, subds. (a)
(1) & (3).). Disturbing the peace has also been construed broadly to include “conduct in
destroying … mental or emotional calm.”11 Counsel for alleged abusers should therefore be
careful in addressing the victim’s subjective state of mind and apparent lack of fear as the
basis for denying a restraining order.
A related question was addressed in Rodriguez v. Menjivar, 243 Cal. App. 816 (2015) which
held that “(n)o showing of probability of future abuse is required to issue a DVPA restraining
order” (Id., at 823) when the trial court refused to issue a DVRO because the last act of
physical abuse occurred more than six months before the hearing. In Rodriguez, the trial court
clearly gave temporal proximity undue weight in light of the significant physical, emotional and
mental abuse perpetrated against mother and daughter over a period of time. While the court
of appeal cited Nakamura, “(a) trial court is vested with discretion to issue a protective order
under the DVPA simply on the basis of an affidavit showing past abuse” (Nakamura, supra,
156 Cal. App. 4th at p.334.), the next sentence in Nakamura concluded that “(s)pecifically, it
‘may’ issue an order ‘withor without notice, to restrain any person for the purpose of
preventing a recurrence of domestic violence and ensuring a period of separation of the
persons involved, if an affidavit . . . shows, to the satisfaction of the court, reasonable proof of
a past act or acts of abuse.’” (§ 6300.)” Id, at 334. While the probability of future abuse may
not be a requirement for a DVRO, it is surely relevant to the statutory question of whether a
DVRO is necessary to prevent a recurrence of domestic violence and ensure a period of
separation. The better argument is that the weight given to this factor may be less where the
abuse is severe and sustained
Contact a Los Angeles Family Law Attorney at Law Offices of Warren R. Shiell
Please call to make an appointment at 310.247.9913.
© 2020 Warren R. Shiell. All rights reserved. Los Angeles Divorce and Family Law Attorney. The information contained in
this website is an "Advertisement." It is for informational purposes only and shall not constitute legal advice. Nothing in this
Website shall be deemed to create an Attorney-Client relationship. An Attorney-Client relationship shall only be created when
this office agrees to represent a Client and a Client signs a written retainer agreement. .