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There’s No Entitlement to a DVRO Based on Physical Response to Emotional Abuse—C.A.
By a MetNews Staff Writer
The Sixth District Court of Appeal yesterday rejected the contention of a man who is the subject of a domestic violence restraining order that he is entitled to have a reciprocal order imposed on his wife based on her act of physical violence—grabbing his forearm and scratching him—in response to his emotional abuse.
Justice Cynthia C. Lie authored the unpublished opinion which declares the legal contentions put forth by appellant Liquan Tan to be “unsupported by the Domestic Violence Prevention Act.”
“The Act is not a legal mandate compelling courts to issue injunctions as redress for past acts of abuse,” she declared.
Quoting from Family Code §6220, the jurist said that the act “is a grant of discretionary authority allowing courts to restrain individual liberty—subject to prescribed conditions and procedural limits—‘to prevent acts of domestic violence, abuse, and sexual 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.’ ”
‘May’ Not ‘Shall’
Lie noted that “a court may issue a restraining order to prevent domestic abuse if the party seeking the order” makes the requisite showing of past acts of abuse.
“[A]lthough a finding of past abuse is a necessary precondition to the issuance of a restraining order, such a finding does not require the trial court to issue a restraining order upon request or prescribe minimum conditions for an order, if issued,” she wrote. “Rather, the trial court in exercising its ‘broad discretion’ to decide whether to issue a restraining order…must first determine whether a restraining order is necessary to prevent a recurrence of that past abuse, and if so, what scope of restraining order is necessary.”
Lie went on to say:
“An order of protection, it should not be necessary to state, is not an instrument of redress, retaliation, or punishment for the restrained party’s past misdeeds, even if the restrained party may experience it as such. The overarching legislative purpose is balancing the future interests of the parties in favor of protection against a recurrence of proven abuse.”
No ‘Bright-Lines’ Rules
While Tan asserted that Santa Clara Superior Court Judge Cindy Hendrickson failed to follow the dictates of the act by declining to impose a restraining order on the wife, Yen Ching Lee, Lie countered that it is Tan’s “effort to import bright-line rules purporting to mandate the issuance of restraining orders that contravenes the letter and purpose of the Act.”
Noting that the appeals court does not “endorse the totality of the trial court’s reasoning,” Lie said that any “anomalies” in Hendrickson’s “legal reasoning…were harmless.”
The case is Y.L. v. L.T., H048453.
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