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Do you have to wait until the other side attacks you, before using physical force?  Not always, the California Court of Appeal said in a Family Law case published last week.  The case, J.J. vs. M.F., involved a domestic violence incident that occurred in October, 2012, involving, of all things, a dispute over a little boy’s jacket.  During the altercation, the mother pushed the father away from her when he came at her and their son.

The trial judge granted a restraining order against both parents, but the Court of Appeal reverse as to the restraining order against the mother, noting that “[t]he single act of pushing M.F. (the dad) away does not support a finding that she acted primarily as an aggressor, especially in view of M.F.’s history of abuse against her”.  The appeals court, in its unanimous decision, said that the mother was acting primarily in self-defense and not as the aggressor.  She needed to be the aggressor in order for there to be a restraining order against her.

The court noted that the responding party is not liable if he or she “reasonably believed, in view of all the circumstances of the case, that the plaintiff was going to arm him or her and the defendant used only the amount of force reasonably necessary to protect himself or herself”.

The trial court had also used the mom’s repeated phone calls to the dad as a basis for granting a restraining order against her.  By way of background, it is true that California’s Domestic Violence Protection Act (“DVPA”) allows the court to stop someone from “harassing [and] telephoning, including, but not limited to, making annoying  telephone calls as described in Section 653m of the Penal Code”.  But the law also says the law does not apply to telephone calls made in good faith.

In this case, the mom made over 20 calls to the father’s  mother’s cell phone.  The calls all went to voice mail or were simply “missed”.  The mother needed the father to return the boy’s jacket because the boy was sick, because it was cold, and because she needed the jacket for the son when she took him to daycare.  Based on this, the Court of Appeal concluded “[t]hese calls were not the type of conduct that may be enjoined under the DVPA”.  The court reasoned, “[s]he made repeated calls because her very young son was ill, the weather was cold when she took him to daycare in the morning, and the child had only the one warm jacket.  As a mother concerned about her child’s health, she had a legitimate and nonharassing reason to contact the father.  Again, this was not acting out as an aggressor”.

The case arose from Los Angeles County, but decisions of the Court of Appeal are normally binding on all trial courts in California, including Family Law court in San Diego County.

As an aside, the parties are identified by their initials because this was a paternity case, not a divorce case, as the mother and father were never married.  And in paternity cases, the law in California requires the files to be sealed, so if there is an appeal, the parties can only be identified by their initials.

The post To Hit or Not to Hit appeared first on Andy Cook Law.


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