Considerations in Domestic Violence Restraining Order Cases Involving LGBTQ Parties

Hon. Christopher R. Bowen, Supervising JudgeCalifornia Family Code sections 6200-6390 govern restraining orders issued under the Domestic Violence Prevention Act (DVPA). Restraining orders can be granted against a current or former spouse, a current or former dating partner, the parent of one’s child, or certain other family members, including both blood relatives and relatives by marriage. “The purpose of [the DVPA] is to prevent acts of domestic violence, abuse, and sexual abuse and to provide for a separation of the persons involved in the domestic violence for a period sufficient to enable [them] to seek a resolution of the causes of the violence.” [Family Code § 6220.]

A judicial officer can issue an ex parte emergency protective order if a law enforcement officer presents reasonable grounds to believe there is an immediate danger of domestic violence, that a child is in danger of abuse or of being abducted, or that an elder or dependent adult is in immediate danger of abuse. [Family Code § 6250.] These emergency orders are typically issued telephonically and may last up to seven calendar days.

Upon written ex parte application, a judicial officer may issue a temporary domestic violence restraining order protecting the applicant, other named family or household members, and animals. [Family Code § 6320.] A hearing on the temporary restraining order must occur within 25 days. After a noticed hearing, the court can issue a domestic violence restraining order after a hearing that can last up to five years. [Family Code § 6345(a).]

LGBTQ people and some others working with survivors of abuse sometimes use the terms “domestic violence” and “intimate partner violence” interchangeably. In recent years a growing awareness has emerged about intimate partner violence in LGBTQ relationships.[1] The official website of the judicial branch contains materials on this issue that provide valuable guidance to practitioners and bench officers.[2]

Unique issues can arise in the context of domestic violence restraining order cases involving LGBTQ litigants. In some cases the person seeking protection (or a witness) may not be “out” about their sexual orientation or gender identity. Since most court proceedings (including hearings on restraining order requests) are open to the public, an abuse survivor or a witness may fear being “outed” during the course of a public restraining order hearing. Moreover, a perpetrator of abuse might use the other party’s or a witness’s “closeted” status to dissuade them from giving public testimony, or to discourage the protected party from pursuing a restraining order request in the first place. An abuser could attempt to “out” a party seeking protection or a witness as a means of control or intimidation.

In appropriate cases, when “necessary in the interests of justice and the persons involved,” the Court can order a portion of a trial as to any particular fact to be held in private, with only the bench officer, court personnel, the parties, attorneys and witnesses present. [Family Code § 214.]

As a practical matter, the Court is unlikely to order part of a hearing to be closed on its own motion in order to prevent undue stress or embarrassment of any witness or party because it may not be immediately apparent that it is in the interests of justice to do so—or that these concerns are present. Unfortunately, self-represented litigants may not know that they can request a partially-private hearing. In those cases where counsel are present, a succinctly-phrased request made to the Court outside the presence of witnesses for partial closing of the hearing under Family Code § 214 could alert the Court to these potential concerns. It is unlikely that the entire hearing would be ordered closed, but a portion of a witness’s testimony could be taken in private if the court makes the appropriate findings.

In addition, either party to a restraining order hearing is entitled to have a support person present who can sit with them at counsel table if the party is self-represented. [Family Code § 6303(b).]

LGBTQ persons seeking restraining orders may be concerned about implicit bias or gender or sexual orientation-based stereotypes coming up during the hearing. Some practitioners have reported that it is not uncommon in restraining order requests involving LGBT individuals for one side (or the Court) to suggest that “mutual” restraining orders be issued. However, the Legislature has carefully limited the Court’s authority to issue “mutual” orders at all, and in practice such orders are rare. [Family Code § 6305(a).] Unless both parties personally appear at the hearing both having made prior written requests on the required Judicial Council forms AND the court makes a number of detailed mandatory findings, issuing mutual restraining orders is strictly prohibited. Appellate courts routinely ensure that trial courts adhere closely to these legislative mandates. [See Isidora M. v. Silvino M. (2015) 239 Cal.App.4th 11; J.J. v. M.F. (2014) 223 Cal.App.4th 968; Monterosso v. Moran (2006) 135 Cal.App.4th 732.]

There are increasingly numerous resources available to assist us in becoming familiar with the particular concerns facing LGBT persons involved in situations where intimate partner violence is present.[3] It is important for attorneys representing parties seeking protection and parties who may be subject to restraining orders, advocates of abuse survivors, support persons for people seeking restraining orders and for those opposing them, and bench officers to become familiar with the particular issues and concerns LGBT people involved in restraining order proceedings can have. In addition, the statutory framework of the DVPA and the manner in which restraining order hearings are conducted under the Family Code provide ready-made options for courts to use in ensuring that these hearings are fair to all sides and that parties are afforded due process.

Christopher R. Bowen has been a Judge of the Superior Court of California, County of Contra Costa since December 2010. He is currently Supervising Judge of the Family Law Division. Judge Bowen is a member of Bay Area Lawyers for Individual Freedom (BALIF), the National LGBT Bar Association, and the International Association of LGBT Judges. He speaks frequently on Family Law topics, including restraining orders. In August 2016 he was in a panel discussion at the annual Lavender Law Conference called “LGBTQ Domestic Violence: Out of the Closets and Building a Movement.” The idea for this article was inspired by his participation on that panel, and he wishes to thank Terra Russell Slavin, Debra Murphy, Anya Lynn-Alesker, and Mieko Failey who were the other panel participants.

[1] Two Studies that Prove Domestic Violence is an LGBT Issue http://www.advocate.com/crime/2014/09/04/2-studies-prove-domestic-violence-lgbt-issue (retrieved December 8, 2016.)
[2] http://www.courts.ca.gov/documents/lgbtq_final_12-4.pdf
[3] https://lalgbtcenter.org/health-services/mental-health/intimate-partner-domestic-violence

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