A Domestic Violence Case Story
By Cheryl Bigos, Staff Attorney, Family Law Unit
Introduction
My client Sandy had fled a long term abusive relationship, along with her two children, when she contacted us for help at the CLA SoCal Domestic Violence Clinic at the Whittier Courthouse. She and her abusive partner John (fictitious name) were living in Nevada when she left him. John had been emotionally, financially, and physically abusive for years.
Back story
Sandy officially ended the relationship with John in January of 2020 and was able to get a job and a place to live. The couple established an unofficial visitation agreement. Soon thereafter the pandemic began, and Sandy lost her job a few months later.
In November of 2020, John decided to keep the children and would not allow Sandy to see or speak to them. He would set up a date for visitation, then cancel at the last minute. He said she could only see them if she moved back in with him. Unable to consult an attorney and keep up with her rent, Sandy felt she had no choice but to move back in with him in March of 2021.
After she returned the abuse continued. On one occasion, John dragged Sandy with his truck while the children were in the vehicle. Another time he slammed her head into a bookshelf. He made her a prisoner in the home and repeatedly told her he had the money to take the children away from her.
By June 2021, Sandy had enough. She contacted a relative and a friend in California who told her she could temporarily stay with them. Unbeknownst to Sandy, John put a tracking device on her car and was able to locate her. He showed up at the residence while Sandy was out and sent a video of himself in front of the home threatening to kill the man whom he believed was her new boyfriend.
Knowing John carried a gun, Sandy called the police. When the police arrived, they confronted John and asked him to leave. The next morning, fearing for her safety and that of her children, she came to us at the Domestic Violence Clinic to file for a restraining order.
Sandy’s case begins
In order for the state to have jurisdiction over John, Sandy had to serve him in California. She hired a process server and got John to go to California by telling him he could visit the children. When the process server attempted to hand him the papers, he refused to take them, ran back to his car, and fled. Under California law, however, this is considered proper service.
Before the hearing in July 2021, the parties were ordered to attend mediation.
I represented Sandy at the hearing. Although California provides for emergency protection for children through a temporary restraining order, the state does not have jurisdiction over child custody and visitation.
John files for emergency custody
Shortly before the restraining order hearing, John filed for emergency custody of the children in Las Vegas claiming Sandy took the children without his knowledge, that she had abused him, and was living with a brother who molested her. He requested the judge order her to return the children to him.
John’s attorney in Las Vegas contacted our judge in Los Angeles and the family law facilitators office to cancel mediation and let the judge know she did not have jurisdiction to make custody and visitation orders because Nevada had jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act.
The restraining order hearing in California
John did not attend the restraining order hearing in July. The judge presiding over the restraining order in California discussed the fact she would not be able to make an order regarding custody and visitation on the record and, after hearing testimony and reviewing evidence, granted Sandy a five-year restraining order. Because most of the abuse occurred in front of the children, the judge listed them as protected parties under the order. Sandy was required to serve John with the Restraining Order After Hearing and hired a process server in Las Vegas. Service was completed a few days after the hearing.
Sandy attends Nevada custody hearing in pro per
A few days later, Sandy attended a custody and visitation hearing in Las Vegas in pro per. John was represented by an attorney. The judge admonished Sandy, stating she should not have left with the children to California and should have filed a restraining order in Nevada.
When Sandy tried to explain that she had no place to stay in Nevada, and that the domestic violence shelters had no room because of the pandemic, the judge refused to accept her explanation. She ordered that Sandy return the children to their father and granted her visitation four days a month and calls with them.
A status hearing to review the custody, visitation, and domestic violence issue was scheduled for October in Las Vegas. Sandy felt defeated.
John’s California counsel makes moves
Not long thereafter, I received a call from a law firm in Los Angeles claiming to represent John. They asked if Sandy would be willing to drop the restraining order because John maintained he was never served. I refused and explained John was lying about non-service.
They sent me a proposed mutual “stay away” order, which I refused. They then tried to say that if they were successful in getting the restraining order vacated, there was no guarantee the restraining order would be granted again if John was present for trial. I disagreed and told them that Sandy testified at the hearing, and we submitted evidence to support our case.
The next day, I received their motion to vacate the restraining order based on non-service. A hearing was scheduled for mid-October of 2021. Our goal was to make sure the restraining order was not vacated so that Sandy could register the order in Nevada and use it to obtain custody of her children.
Overcoming falsehood and roadblocks
John told his attorneys he had no knowledge of the restraining order until the hearing in Las Vegas, which was clearly not true. He also claimed he was never served with the Restraining Order After Hearing, which was not true, and that it was served to his brother who tried to show the process server an ID indicating he was not John.
With the litigation funds set aside for these types of issues, I was able to serve subpoenas to both process servers and pay the witness fees required for their testimony. Both process servers confirmed they served John, and one signed a declaration confirming it.
We submitted our opposition to the motion based on the declaration provided by the process server and information provided to us by family court services, who informed us John’s attorney cancelled mediation because of jurisdiction issues. We also attached the evidence provided during the restraining order hearing because opposing counsel was trying to argue that the restraining order was only granted by “default.” It was important to show that the restraining order was granted after Sandy testified and provided police reports and photographs so that opposing counsel would realize that the order would be granted even if they were successful in vacating the restraining order.
Coming to an agreement
After receiving our opposition, John’s counsel tried to negotiate again by pushing the mutual stay away order. We refused. Just before the hearing, John agreed to let the restraining order remain and he would allow Sandy to keep the children in California. The only request was that we remove the children as protected parties so he could have visitation with them. Sandy agreed.
Today, Sandy continues to reside in California with her children and the court in Nevada worked out a visitation schedule for John. Because of our assistance, Sandy informed me her goal is to go back to school so she can work for an organization such as ours and assist other DV survivors who may not be able to afford legal assistance. We wish her and her family the best of luck as she begins her new endeavors.
