Nonviolent Conduct That Can Be Restrained Under the Domestic Violence Prevention Act (DVPA)

There is a common misconception that Restraining Orders can only be obtained after one party has inflicted physical abuse on the other party.  While all physical violence constitutes abuse under the Domestic Violence Prevention Act (DVPA,) not all abuse involves physical violence. Increasingly, courts are granting protective orders for nonviolent conduct that disturbs the peace of another.

Family Code Section 6220 provides that the purpose of the Domestic Violence Prevention Act (DVPA) is to prevent acts of domestic violence, abuse, and sexual abuse, and to provide for a period of 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.  Abuse under the DVPA encompasses nonviolent conduct, including: disturbing the peace of the other party, stalking, harassing, making annoying telephone calls, contacting either directly or indirectly and credibly impersonating the other party.

“Disturbing the peace” of the other party has been interpreted by courts to include conduct that destroys the mental or emotional calm of the other party.

Marriage of Nadkarni (2009); Burquet v. Brumbaugh (2014).  In Nadkarni, the ex-husband accessed the ex-wife’s personal email account and obtained emails from his wife to third parties.  The husband disclosed these confidential emails to third parties and attached the emails to documents he filed in court.  The husband also informed other persons that he knew which social events his wife would be attending, which his wife stated caused her fear because her husband had physically abused her in the past.

The Court of Appeal found that such conduct may constitute abuse under the DVPA.  Specifically, husband’s conduct in viewing wife’s private emails, learning her social schedule, and communicating this information to third persons who then told her that he was aware of her schedule, could constitute indirect and threatening contact with her, and thus abuse within the meaning of Family Code section 6320.

Following the Nadkarinidecision, appellate courts have affirmed trial courts that have found one party has destroyed the mental or emotional calm of the other party by hacking into social media accounts, accessing private emails of the protected party and disclosing the information to third parties, and posting videos and pictures.

In Evilsizar & Sweeney (2015), the court granted a DVPA order based on downloading and disseminating content from Ms. Sweeney’s phone, including text messages between  Ms. Sweeney and third parties.

In Burquet v. Brumbaugh (2014), “D” continued to contact “P” after the relationship ended and “P” told “D” to stop contacting her.  “D” showed up outside her residence and refused to leave.  Notwithstanding that there was no history of violence or threats, the court determined that all that is required for “disturbing the peace of the other party” is conduct that destroys the mental or emotional calm of the other party.

In Altafulla v. Ervin(2015) – Erivin sends emails and texts to Altafulla’s employer and friends, attaching surveillance report of Altafulla being unfaithful to Ervin; The court determined that the emails were plainly designed to embarrass Altafulla. They were an unmistakable manifestation of his extreme anger toward her.  The court further explained that the DVPA is intended to address the very real fears of such victims of harassment.

If you want a better understanding of what constitutes non-violent conflict, please contact our office to schedule a consultation. The Law Office of Bawden & Kochis also handles legal issues regarding adoption, annulment, mediation, child custody (with no accompanying domestic violence), child and spousal support as well as pre-marital and post-marital agreements. Telephone (909)792-0222, or email us at [email protected]

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