Denial of Domestic Violence Restraining Order Reversed; Improper to Refuse Evidence of Recent Abuse, Appeals Court Holds

Timothy Kowal, Esq.
June 1, 2021

Family court orders, such as domestic violence restraining orders, are often difficult to reverse because they are subject to a very deferential standard on appeal. A Court of Appeal will only reverse if it concludes the family court abused its discretion. But the abuse-of-discretion standard has limits. And when the family court misapplies the legal and evidentiary rules entirely, its rulings are entitled to no discretion at all.

That is what happened in Marriage of F.M. and M.M. (D1d1 May 28, 2021) no. A160669 (non-pub.). There, mother filed a domestic violence restraining order against father pending resolution of their dissolution proceedings and her request for child support of their six children all under the age of 13. The trial court issued a TRO based on mother's allegations that father had beaten her in the past and had threatened to kill her. Father denied the allegations, accusing mother of becoming belligerent when father asked for help to meet expenses.

The trial court ruled that although the parties "definitely need to stay away from each other," the court concluded "[t]hat doesn't mean that there needs to be domestic violence restraining orders." Instead, the court ordered mother to move out of the house (even though no one asked for that).

The court also categorically refused to consider mother's testimony that father had threatened violence after the TRO was issued. The court reasoned that evidence of any events that occurred after the DVRO request was filed was irrelevant. The court also rejected the testimony because there was not any "corroborating evidence," and that mother has the burden of proof.

Evidence Supporting a DVRO Need Not Be Limited to Pre-Petition Acts:

The First District Court of Appeal reversed. The court agreed with mother that “[n]othing in the plain language of the DVPA restricts courts when ruling on a DVRO request to hearing evidence of abuse that occurred only before the request was filed.” Nothing in the Domestic Violence Prevention Act (DVPA) or Family Code section 6300 requires "that the ‘past act or acts of abuse’ must have occurred only before the petitioner filed the request, or that a court is barred from considering any abuse occurring thereafter.” Evidence of postfiling abuse is also relevant, particularly after a TRO has been issued.

Besides, the trial court's application of this unsupported principle was arbitrary: when mother showed up at father's house without a police escort to collect her belongings, the trial court admonished her that that was not "good judgment" and the court would use that as a "factor" against her DVRO petition.

The trial court's categorical refusal to consider postfiling evidence of father's alleged abuse and violation of the TRO, based solely on the ground that the conduct had occurred after mother filed her DVRO application, was legal error and therefore constituted an abuse of the court's discretion. The court's evidentiary cut-off violated the DVPA's mandate that a court “shall” consider the “totality of the circumstances” in determining whether to issue a restraining order. (§ 6301, subd. (c) [“The court shall consider the totality of the circumstances in determining whether to grant or deny a petition for relief.”]; see also § 6340, subd. (a)(1) [the court “shall consider whether failure to make any of these orders may jeopardize the safety of the petitioner and the children for whom the custody or visitation orders are sought”].)

The court also concluded the error was prejudicial.

DVRO Petitioners Have No Heightened Evidentiary Burden Beyond "Reasonable Proof":

The trial court also erred in imposing a heightened standard for specificity. The DVPA does not impose a corroboration requirement. The petitioner need merely establish "reasonable proof of a past act or acts of abuse.” (§ 6300, subd. (a).) The DVPA also expressly provides that a court may issue a restraining order “based solely on the affidavit or testimony of the person requesting the restraining order.” (§ 6300, subd. (a).)

Although a trial court's credibility determination is rarely reversed, this one was. Of course, “[a] trier of fact is free to disbelieve a witness ... if there is any rational ground for doing so.” (In re Jessica C. (2001) 93 Cal.App.4th 1027, 1043.) Here, the trial court did not indicate on the record that mother lacked credibility as a witness, and indeed, the court must have credited her testimony because it issued and reissued the TRO several times.

The Family Court Is Not Free to Fashion Lesser Remedies When a Restraining Order Is Warranted:

Finally, the court held it was an abuse of discretion for the court to deny the DVRO once it had determined that the parties needed to stay away from each other. (See Cueto v. Dozier (2015) 241 Cal.App.4th 550, 562 [“These comments [warning the respondent to stay away from the petitioner after denying her petition] suggest that the trial court believed there was a need to admonish [the respondent] from the bench that he must continue to stay away [from] and have no contact with [the petitioner], but without giving [the petitioner] the legal protection of a restraining order.”].)

Given the couple here have six children together, complete separation cannot be achieved simply by one of them changing residences. The court ordered that the trial court may not deny mother's petition for a restraining order simply on the basis that she no longer lives in the same residence with father.

Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at, and publishes a newsletter of appellate tips for trial attorneys at His appellate practice covers all of California's appellate districts and throughout the Ninth Circuit, with appellate attorneys in offices in Orange County and Monterey County. Contact Tim at or (714) 641-1232.

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