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The Definition of Abuse in California Divorce cases


What happens if a person sees domestic violence but, for the most part, doesn’t actually physically experience it?  According to a decision of the Court of Appeal, it may still count as “abuse”, allowing the person who saw what happened to get a restraining order under California’s Domestic Violence Prevention Act (DVPA).

In a 3-0 decision issued yesterday, the appeals court held that a Chinese immigrant who saw her husband constantly hurt their 13-year-old son was a victim of abuse — contrary to the decision of the trial judge, based in San Francisco.  The Court of Appeal noted that “[i]n her declaration attached to the DVRO request, appellant alleged specific and admissible facts based on her personal knowledge describing past acts perpetrated by respondent against the child and appellant.  Assuming their truth, these factual allegations would support a finding that respondent’s past behavior was abusive as it had placed appellant in reasonable apprehension of imminent serious bodily injury to herself or the child, and disturbed appellant’s peace by causing the destruction of her mental or emotional calm”.

Among some of the things the wife saw was an incident on Skype, while she was still in China, in which the husband started yelling at the child for not cleaning the house.  The child started to crawl away and was then whipped by his father with a long plastic/rubber stick and was also slapped and kicked.

Another time, the wife saw the husband, angry at the child for not helping him carry some things from the car into the house, knock a computer the boy was using off a table and put him in a chokehold.  The wife could see the child’s face turn red and veins pop out of his face and neck.  The wife then kicked and hit the husband, who then bit her on the arm.  This was in December, 2011, about nine months before the wife filed for the restraining order.

There were other incidents as well, and so on September 12, 2012, the wife obtained a temporary restraining order from a judge.  But in December, at the hearing to determine whether the temporary restraining order should be extended, a different judge concluded that the wife was not a victim of domestic violence.

In reversing the order, the Court of Appeal noted that even an assault on the family dog can amount to “abuse” under California’s domestic violence statute  if the applicant or applicants for the restraining order see the attack.

This case is entitled Qing Hui Gou vs. Bi Guang Xiao.  Though the appeals court that decided the matter is based in San Francisco, decisions by the various appellate courts in California are binding on trial judges throughout the state, including San Diego, in most instances.

Domestic violence restraining orders may be issued for up to five years.

The decision by the Court of Appeal this week is the latest in an unusually high number of domestic violence cases decided by appellate courts in California this year.

The post The Definition of Abuse in California Divorce cases appeared first on Andy Cook Law.


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