Saturday I spent the morning with approximately 120 other lawyers being brought up to date on the newest developments in the law on domestic violence. As we sat in the penthouse conference room at the Sheraton Delfina watching the clouds clear, we were lectured on the various aspects of the Domestic Violence Protection Act. The state has made the process to get a temporary restraining order (TRO) even easier, and I think it is a huge mistake. I think we are creating a system that is rife with abuse, overprotective and comes to absurd conclusions on the slimmest of evidence.
The application for the form is theoretically designed for a person with a fourth grade education to be able to fill it out. I’m not sure why they chose that as the standard. It seems rather inappropriate in my eyes because the forms give immediate possession and control of housing, cars, bank accounts and pets. Orders can and frequently do take control over child custody, child support and spousal support. In essence, a domestic violence restraining order can be an expedited divorce proceeding, without the actual divorce.
These are weighty issues. Issues like someone’s Constitutional right to bear arms, to live where they choose, to attend church and to be a parent. They should not be taken away lightly or infringed upon without significant review by a judge upon due consideration — consideration that is sadly lacking in the overworked family courts, precisely because it is so easy to file for a restraining order and clog a court’s calendar.
Domestic violence is a problem. It is a thorny issue with many long term negative effects upon the victim, the perpetrator and the children who witness it. The biggest difficulty in “abuse” is defining it. The courts define it as “sexual assault, violence resulting in injury, or acts or statements causing fear of imminent physical injury.” The courts are necessarily liberal in their definition because they want to protect people, and the philosophy is to keep the situation as calm as possible, which is done by keeping people apart.
This is where the courts have become too liberal in my opinion. It is very easy for anyone to “stretch the truth” or outright lie, to get a TRO. Because the courts will issue a temporary order on just one side’s declarations, without a requirement of notice to the other party, it makes it easy for a party to use a TRO as leverage in a family fight.
For example, I was in a Ventura court yesterday where mom had alleged that she had to take the baby and “flee for her life” she was so scared. The court ordered that dad couldn’t see his 14-month-old daughter and that mom had complete custody for almost a month based solely on her declaration.
When you find out that mom has a history of post-partum depression and was threatening to kill the baby, it makes her claims that dad was abusive seem less sincere, but for almost a month, dad couldn’t see or hold his daughter. That’s not right.
When one party can get a “kick-out order” based merely on a statement to a judge that they “saw my roommate break a glass in anger, and I was afraid they were going to attack me” it becomes clear how easy it is to manipulate the law.
People sign declarations under penalty of perjury that what they are telling a judge is true. This means that the judge then must accept as fact what is in the declaration, at least for the issuance of the TRO phase. Hard as it is to believe, people will lie under oath.
This is not a gender issue, both men and women are completely capable of lying under oath, and do so with surprising regularity.
We live in a society that allows a woman to beat on a man. It’s an unfair double standard, but the fact is that most men are taught that it’s not OK to hit a woman, but it’s OK to be hit by a woman. Most men feel emasculated asking for help. They think that they don’t need someone else to protect them. It’s that whole macho ethic of being able to take care of myself.
Sadly this strength is frequently his biggest weakness.
Most of the men who come to me after they have been served with a TRO have had more than enough reason to seek their own TROs, but haven’t done so, as they feel that it is not manly and makes them appear weak.
Saturday, we were told explicitly that there is not a double standard when it comes to the enforcement of domestic violence. The law is designed to protect men just as much as women, and a court will issue the same restraining order for the same behavior if a woman does it to a man, but until we stop accepting female on male violence on a societal level, it will not matter.
David Pisarra is a divorce attorney who specializes in father’s rights and men’s Issues with the firm of Pisarra & Grist in Santa Monica. He can be reached at dpisarra@pisarra.com or (310) 664-9969.
