Can the court issue mutual restraining orders and family code section 6305

Can the court issue mutual restraining orders and family code section 6305

November 25, 2019

In this case, one party has filed a request for a restraining order. They other party did not file a request for a restraining order. At the hearing, the judicial officer made MUTUAL restraining orders, despite the fact that the other party never requested one.

In reversal, Sixth District holds that trial court erred by issuing mutual restraining orders against the parties where only one party requested a restraining order and the other made no separate written request for one.

In re Marriage of Ankola
(June 20, 2019)
California Court of Appeal 6 Civil H045899, 36 Cal.App.5th 560, 248 Cal.Rptr.3d 683, 2019 FA 1894, per Premo, J. (Greenwood, P.J. and Elia, J., concurring). Santa Clara County: Towery, J., reversed. For husband: Adam Bernstein, (510) 922-8192. For wife: Peter Lindstrom, (408) 596-2946. CFLP §C.11.10.

Manishkumar and Priyanka Ankola were married on June 12, 2014, but wedded bliss did not follow. On December 15, 2015, Manish filed a petition for an annulment on the grounds of fraud. In response, Priyanka denied his allegations of fraud and sought a divorce on the grounds of irreconcilable differences. In May 2016, Priyanka followed up with a request for a Domestic Violence Protective Order (DVRO). After several continuances, the trial court heard the nullity petition and the DVRO request at a bifurcated trial on September 7, 2016. The trial court denied both the petitions, finding that neither party met their respective burdens of proof. (Proving your case for fraud can be difficult which leads many divorce lawyers to tell their clients that it is easier to just get divorced.)

In February 2017, Priyanka filed another request for a DVRO, based on “facts which had arisen” since the September 2016 hearing. After a hearing in June, the trial court issued a 5-year DVRO against Manish on August 15, 2017. The next day, Manish filed a request for a DVRO against Priyanka. She filed a response denying his allegations but did not file a separate written request for another DVRO against Manish.

At a hearing on February 20, 2018, Manish testified that Priyanka had “‘been an angry woman all the time,'” and had hit him on several occasions. He also testified that she threatened to kill him, tried to run him over with her car, and threatened the safety of one of his children, whom she hated, from a prior relationship. To add insult to injury, he said, she also made false accusations about him to other people, including claims that he had STDs, engaged in human trafficking, and raped her. On cross-examination, Manish admitted having written a letter to Priyanka’s employer stating that their marriage was a fraud and that she had falsified information on her resume concerning her education and prior experience.

Priyanka testified that Manish had become “‘more controlling’ of her” after their marriage and kept threatening to report her to immigration authorities. She claimed that she never hit Manish, but merely pushed him away when he got too close. When the hearing concluded, the trial court noted that “‘this is round three of the Court hearing about this marriage,'” and made a finding that both parties had committed acts of domestic violence and that neither had acted primarily out of self-defense. On April 18, 2018, the trial court issued a mutual restraining order against Manish.

Manish appealed, and the Sixth District reversed.

Manish contended that the trial court erred by issuing a mutual restraining order against him under Fam.C. §6305 given that Priyanka had not made a separate request for one before the hearing. The justices noted that under Fam.C. §6305(a), a trial court may not issue mutual DVRO restraining orders unless each party personally appears and presents written evidence of abuse in an application for relief on a mandatory Judicial Counsel form, and, also, the trial court makes detailed findings of fact that neither party acted primarily in self-defense and both acted as primary aggressors. When they looked to see whether the parties had complied with those requirements, they found that only Manish had. Priyanka had filed a response to his application, but not a separate request. And, the panel found, allegations made in a responsive pleading cannot be a substitute for a proper separate written request. The panel then considered whether the DVRO could be construed as a modification of the August 15, 2017 order. They found nothing in the record to indicate that the trial court intended it to be such, and if it had, it lacked the authority to do that. Accordingly, the justices reversed the DVRO against Manish.

The Court noted that §6305 had been amended after the Second District’s holding in Isidora M., 239 Cal.App.4th 11 (2015), but rather than distinguish the present case from Isidora, as Priyanka urged, the Court observed that the changes to §6305 essentially codified the Isidora holding.

Many people will often go to court unrepresented and then are upset at the outcome. In this case, wife did not file a request for restraining orders and therefore can not give her a restraining order on Father’s request. Edgar Family Law has years of experience with domestic violence and restraining orders. We litigate these requests at least one time a week. Contact our office for a consultation.


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