Monday, March 31, 2014

"Domestic Violence" and "Disturbing The Peace": How Should They Be Defined?

      California’s Domestic Violence Prevention Act (“the DVPA”) was intended to streamline and simplify the process of protecting victims, including children, from familial abuse.   Two recent cases have blurred the definition of “domestic violence” to a point where it is now difficult even for experienced lawyers to predict, in a given case, whether particular conduct rises to the level at which a particular judge, on a particular day,  will issue a permanent restraining order.  Since DVPA restraining orders have serious long-term consequences to the rights of the person at the “business end” *, particularly in any case involving children, this is a far from trivial concern.

     The problems start with a circular legal definition: California Family Code  (“FC”)  Section 6203 defines “abuse” as:

     (1) "... causing or attempting to cause bodily injury"; 
     (2)  sexual assault, 
     (3) "placing a person in ... ...apprehension of imminent serious bodily injury..."
      (4) (and here’s the problem) engaging in “ any behavior that has been or could be enjoined pursuant to FC 6320". 

     FC 6320, in turn, allows the court to "enjoin" any of the following:   molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning, (including, but not limited to, making annoying telephone calls) ... ...destroying personal property, contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party, and ... ... of other named family or household members” and may “include in a protective order a grant of the exclusive ... ...possession... ...of any animal .... The court may order the respondent to stay away from the animal and forbid the respondent from taking, transferring, encumbering, concealing, molesting, attacking, striking, threatening, harming, or otherwise disposing of the animal.”

     So if a judge finds that the person to be (but not yet) restrained did any of those things which the court could have restrained, then it appears that the judge may be required to issue the both he temporary and permanent restraining order.  

The recent Court of Appeal opinion in Burquet/Brumbaugh**, echoing the earlier opinion in Marriage of Nadkarni***, expands the applied definition of “disturb the peace” . In Nadkarni, the appellate court said:

We believe that the Legislature intended that the DVPA be broadly construed in order to accomplish the purpose of the DVPA. Therefore, the plain meaning of the phrase "disturbing the peace" ... ... may include... ... a former husband's alleged conduct in destroying the mental or emotional calm of his former wife by accessing, reading and publicly disclosing her confidential e-mails. .... Datta's conduct included accessing, reading, and • publicly disclosing the content of Darshana's confidential e-mails, and that his conduct caused her to suffer "shock" and "embarrassment," to fear the destruction of her "business relationships," and to fear for her safety. In other words, Datta's conduct with respect to Darshana's e-mail account, as stated in her declaration, allegedly caused the destruction of her mental or emotional calm...
    The court of Appeal reversed the trial court’s refusal to grant a restraining order.

       In Burquet, the appellate court affirmed  trial court’s granting of a permanent restraining order, on a showing that “defendant, because of his inability to accept that his romantic relationship with the plaintiff was over, and despite plaintiff’s numerous requests that he not contact her, was engaging in a course of conduct of contacting plaintiff by phone, email, and text, which messages contained inappropriate sexual innuendos, and arriving at her residence unannounced and uninvited, and then refusing to leave and making a scene, when she refused to see him for the purpose of causing her to renew their romantic relationship.” **** There was no showing that Brumbaugh had ever threatened anyone, or attempted to enter Ms. Burquet’s residence over her objection (in fact, he left the scene voluntarily).

       What is problematic about these cases is the reliance on the parties’ past emotional history in determining what does or doesn’t constitute “abuse” which results in the issuance of a restraining order; effectively, the past emotional relationship of the parties may convert otherwise “non-abusive” conduct into conduct upon which a court can base a permanent restraining order.

      When a legal process requires judges to perform this sort of psychoanalysis, in a short hearing between (generally) unrepresented litigants, on a crowded calendar, while attempting to prevent recurrence of true domestic abuse and violence, we have a problem.

    * These consequences can include a permanent, “un-expungible”  record of the issuance of a temporary order, even if the court later finds that there is no basis for issuing a permanent order, which record will affect any sort of application which requires a background check or disclosure; a presumption that the restrained person should not be awarded sole or joint custody of any child, deprivation of the right to possess a firearm, even in the course of one’s job, and other serious, long-term consequences.  See Shebby, D.  “Hey Joe, Where You Going With That Gun: Do The Automatic Firearms Restrictions In California DVPA Orders Conflict With The Second Amendment”, ACFLS Family Law Specialist 2013:3   p. 1.

    **B248031  Los Angeles County Super. Ct. No. BQ039688 Filed 1/14/14; pub. order 2/11/14.

    ***IRMO Nadkarni (2009) 173 Cal.App.4th 1483

    **** ”“He knocked on the door and plaintiff opened it but did not invite him inside. After a short conversation she told him to respect her wishes and to leave. ‘He got angry. He started saying very—in a loud voice “I love you, I don’t know, I’m sorry.’” She was afraid of what he was going to do, and said ‘Please leave, I’m scared. I will call the police.’ ‘And that’s when he shouted at me through my door window, I want to see you do that.’ Defendant still did not leave, he paced around her porch for about 10 minutes. After about ten minutes he called her from his cell phone and told her he was leaving. He asked her not to be scared, but she was scared because he was angry. On two prior occasions during their relationship when he had gotten angry he became physical with her. He left before the police arrived.”

Friday, March 28, 2014

Wednesday, March 26, 2014

Recovery under the Hague Convention

Christian Nørgaard, a Danish computer science engineer was working in California when he met and married Tammy Zied, a software engineer. They married in Redwood City, California and had two daughters, Mia and Sarah, both born in California. The family moved to Germany then Denmark for Christian’s employment. 

While living in Denmark, the couple separated and in 2012, the Danish courts granted sole custody of both children to Christian. Tammy accused Christian of violence against her and the daughters. Mia began running away from Christian’s home, according to Tammy, to "escape the violence". Last May, Mia arrived in the United States and Sarah was left in Denmark with Christian. It is unclear whether Mia came to the United States with permission of Christian and was never returned, or whether Mia went to the United States without the consent of Christian and against the court order. 

According to an article published in the Copenhagen Post in August 19, 2013, Mia was reported as kidnapped to Interpol after Tammy failed to return her to Christian after an Easter visit. Tammy had told the police that Mia had run away and she didn’t know where she was. Police suspected that Tammy was hiding Mia and held her in custody for five days. When she was released, Tammy disappeared.

Mia and Tammy were living in Laguna Niguel. On January 31, 2014, the local authorities took Mia to a youth facility. Christian returned to California and Mia was returned to him a few days later. It appears that Mia is now with Christian and Sarah in Denmark.

Christian filed a Petition in Orange County under the Hague Convention and received assistance from the United States in the return of Mia to his custody.

Generally, exercising self-help in custody cases is not a good option. If faced with a similar situation or if you don't like the orders that are in place, the remedy would be to petition the court that made the orders, in this case Denmark, for a modification. Orders are binding and disobeying a court order or using self-help will make it more difficult to obtain custody or visitation in the future.

Monday, March 17, 2014

Demographics of Reported Cases of Child Maltreatment

The Centers for Disease Control and Prevention (CDC) has released statistics and demographic data regarding the victims and perpetrators of child maltreatment. It appears that most of the data was obtained and processed through information that was provided by state child protective services agencies, so this might be only data of reported child maltreatment cases.

Of the victims, 79% were the victims of neglect, 18% of physical abuse, 9% of sexual abuse and 10% of other maltreatment such as threatened abuse, parent’s drug/alcohol abuse or lack of supervision. In 2011, 35% of the victims were younger than 3 and children younger than 1 have the highest rate of victimization (21.2 per 1,000 children). In 2011, 80.8% of the abuse was by a parent, 5.9% was by relatives other than parents, 4.4% by unmarried partners of parents and 2.9% by other unrelated adults. Again, in 2011, 45.1% of perpetrators were men and 53.6% were women.

Tuesday, March 11, 2014

Concealing Assets During a Divorce

A northern California man, Steven Zinnel, was sentenced to more than 17 years in prison for declaring bankruptcy and hiding assets to avoid paying child support and spousal support. He was also ordered to pay a $500,000 fine and forfeit assets worth more than $2,8 million. The sentence is said to be one of the longest prison terms given for bankruptcy fraud in federal court in the Sacramento Eastern District of California.

Zinnel, the father of two teenage children, split from his wife in 1999 and had a contentious divorce. Apparently, there was a history of Zinnel concealing his assets throughout he case and afterwards in an attempt to avoid paying support.      

In California, spouses have a fiduciary duty to disclose their complete financial information to each other. If a party’s financial situation changes (upwards or downwards), that party also has a duty to provide supplemental or amended information to the other party disclosing the change to their finances.

Monday, March 10, 2014

Family Law And Religion, Again

The first defendant has entered a Federal guilty plea in the "extort a divorce"  ("get a get"?) case in New York. David Hellman, a New York personal trainer, succumbed to a Federal sting operation, and traveled across a state line (or more specifically, across the GW bridge) to meet with some co-conspirators, and an FBI undercover agent, posing as the brother of a soon-to-be-ex-wife who needed her soon-to-be-ex-husband "convinced" to grant her a get, a religious divorce. 

A tip o' the kippah to Howard Friedman at Religion Clause.

Thursday, March 6, 2014

Permissive Parenting: Best Interest of the Children?

A British court removed two boys, ages 11 and 14 from their 41 year old mother’s custody and placed them in the custody of their 43 year old father. Judge Laura Harris ruled that the mother had "significantly failed" the boys by her permissive parenting. She would sleep, use her Ipad or phone for hours at a time while her children would care for themselves. This caused issues for the children who were frequently late or would miss school. Additionally, mother was found to be systematically "poisoning" the children against their father.

In California, similar to Judge Laura Harris in this case, courts will be reluctant to tell parents how to parent their children and will be tolerant of various parenting styles. If, however, the parenting is not in the best interest of the children or is causing the children harm, then courts will intervene. Also, "poisoning" or alienating the children against the other parent is also not in the best interest of the children and courts will tend to favor the parent they believe will foster the relationship between the children and the other parent.

Wednesday, March 5, 2014

Decision From SCOTUS Regarding Hague Convention

(yes, the Hague Convention on International Child Abduction, NOT the one about dropping bombs from Zeppelins):   Lozano v. Montoya Alvarez, stating that the one year "statute of limitation" within which the courts of a country to which a child has been abducted  (or, in the language of the statute, "removed") must order a child "returned" to the original place of residence is not extended if the child is concealed.