Judge Michael Bishay shares what attorneys representing alleged victims and alleged perpetrators should understand about this developing area of law, from evaluating the facts to advocating effectively without losing sight of the people involved.
Domestic violence law used to focus largely on visible physical injury, but that has changed.
California law now recognizes that abuse can include financial control, reproductive coercion, invasions of privacy and other conduct that undermines a person’s autonomy. As the law has expanded, attorneys have had to rethink not only what may constitute domestic violence, but how they represent their clients.
Michael Bishay, Supervising Judge of Family Law of the Alameda County Superior Court teaches domestic violence law to students, attorneys, and judicial officers across California, and led the development of “Domestic Violence,” Chapter 27 of CEB’s Practice Under the California Family Code. The chapter recently received the Association for Continuing Legal Education’s Award of Outstanding Achievement in the Best Publications category.
The award recognizes the work behind the chapter, which took multiple years to develop and brought together a team of attorneys, judges, appellate justices and appellate practitioners who worked directly with domestic violence litigants. The result is a comprehensive and practical chapter that walks lawyers through domestic violence matters from the first client meeting to requests for emergency orders and through trial, enforcement and later modification.
Here are five lessons California family lawyers can take from it.
1. Domestic violence law is about more than physical harm
Domestic violence law used to focus largely on visible injury, but that has changed. California is the national leader in expanding the legal understanding of domestic violence, with lawmakers and appellate courts continuing to expand and clarify the definition of abuse.
Under the Domestic Violence Prevention Act, abuse is not limited to assault or physical injury. It includes stalking, harassment, damaging property, accessing private communications, financial control and coercive conduct that interferes with another person’s peace or independence.
That can mean controlling someone’s access to money or transportation, monitoring their movements, using immigration status to intimidate them or pressuring them over pregnancy and reproductive decisions. This reflects a broader view of domestic violence as a violation of a person’s peace and calm.
“This is the law of respect. This is the law of equality. This is the law of individuality, and it’s where we need to be in the 21st century,” Judge Bishay said.
For lawyers on both sides, the first task is therefore not simply to ask whether physical violence occurred. It is to examine the conduct as a whole, place it in context and determine whether it meets the DVPA’s broader definition of abuse. Attorneys should understand the full range of behavior encompassed by the DVPA and be prepared to explain how the facts fit within it.
That is particularly important as technology creates new ways to monitor, control or expose another person. Conduct that might once have been dismissed as private conflict can now support a request for a restraining order.
2. The facts will rarely fit neatly into one side’s story
Domestic violence cases often involve competing accounts, incomplete evidence and conduct that looks different depending on the context.
A petitioner may have no photographs, police, medical records or witnesses, as abuse often happens in private and remains unreported. The absence of corroborating evidence does not prevent a court from crediting a petitioner’s testimony.
At the same time, a respondent may dispute the allegations, offer a different sequence of events or argue that the conduct did not rise to the level of abuse. When determining how to respond, counsel must assess not only whether the allegations are true, but whether the conduct legally qualifies as abuse.
In Judge Bishay’s experience, the difficulty becomes especially clear when both parties accuse each other of abuse.
“What happens when two people abuse each other? How do I determine who is the primary aggressor and whether one of them was the aggressor or actually responded or acted in self-defense?” Bishay said. “It’s not about finding a right or wrong answer. It’s how you’re going to analyze and process the facts within the law to reach a just decision.”
California law requires courts to make those decisions case by case, based on the specific facts and credibility of the people involved. For attorneys, that means reconstructing what happened, testing the evidence and helping the court distinguish aggression from self-defense, abuse from dispute and accusation from proof.
3. Children cannot be treated as a secondary issue
When domestic violence allegations involve parents, the case rarely ends with a decision about whether to issue a restraining order. The court must also consider what the conflict means for their children.
A finding of domestic violence can also trigger Family Code Section 3044, which creates a rebuttable presumption that awarding sole or joint custody to the person who committed the abuse would be detrimental to the child’s best interests. That turns the domestic violence determination into a potentially decisive issue in the broader custody case.
This may impact where the children will live, how they will share time with their parents and whether visits with a parent will be supervised, limited or suspended. California law requires judicial officers to order custody and visitation arrangements to reduce children’s exposure to conflict and protect them from further abuse. Children are affected by domestic violence even when they are not the direct target of abuse. Witnessing one parent abuse the other disturbs a child’s peace and is critical to the court’s analysis.
“Domestic violence and its impact on children is a really big deal because children didn’t choose it and can’t make decisions about it. The impact of domestic violence on our new generation and on our society is of paramount importance,” Bishay said. “That means children cannot be treated as secondary to the dispute between the adults.”
Lawyers representing either parent should be prepared to address more than the allegations between the adults. They need to explain what the children saw, how the conduct affected them, what risks remain and how to protect children from future harm.
4. Winning is not the objective
Domestic violence cases are adversarial by nature, but Judge Bishay warns against approaching them as contests to be won at any cost.
“If you are an attorney and you want to get into domestic violence law, and the only focus is, ‘I want to win my case,’ move on and do something else, because people’s lives are in your hands, and this shouldn’t be about winning at any cost,” Bishay said.
For petitioner’s counsel, that means listening carefully to the client’s goals rather than assuming a restraining order is the only answer. Some petitioners view a DVRO as a source of protection, while others fear it could escalate an already dangerous situation. Attorneys should explain the available options without taking control away from the client.
Respondent’s counsel should recognize when the allegations are likely to be sustained and discuss rehabilitation with their client, rather than relying solely on technical defenses. The chapter highlights options such as batterer intervention, therapy, parenting classes and anger management, which are particularly important when custody is at issue.
The point is not that every allegation should be accepted or that respondents should give up legitimate defenses. But if abuse has occurred, helping a client change the underlying behavior serves that person, their children and future relationships more than attempting to help them avoid an adverse ruling.
“Think of the whole. Think about the community. Think about these families. Think about their children and help your client,” Bishay said. “Family law and domestic violence laws are about all of us. It’s about my sister, my neighbor, my child, my parents, my uncle, my aunt, my neighbor or my schoolmate. It is about our community.”
Effective representation still requires zealous advocacy, but it also requires judgment about what outcome will actually help the client after the case is over.
5. Respectful advocacy is critical
Domestic violence matters are emotionally difficult for everyone involved. The parties may be frightened, angry or reliving traumatic events, and attorneys may be under pressure from clients who want an aggressive response.
For that reason, Judge Bishay has found that aggressive tactics and questioning are counterproductive for all concerned — it raises the temperature in the courtroom and it can retraumatize a victim of domestic violence.
“Be mindful, be respectful, and do not try to bully one side or another,” he said. “The last thing you want to do is to go to a victim of domestic violence who alleges that he or she has been bullied by their spouse, only for that spouse to get a lawyer to help them with the bullying.”
It can also intensify the harm to someone who has been falsely accused, particularly when the allegations may affect custody or parenting time. In those cases, aggressive advocacy can turn an already serious accusation into another source of pressure without helping the court determine what actually happened.
Lawyers should present the evidence clearly, challenge weak or inconsistent testimony when necessary and resist the urge to escalate the conflict. In emotionally charged cases, disciplined advocacy helps the court separate the facts from the heat surrounding them.
A resource built for both sides of the case
As a judge, teacher and longtime family law practitioner, Judge Bishay wanted the chapter to reflect more than one viewpoint. He assembled contributors who work with domestic violence survivors, defend accused individuals, handle appeals, train judges and decide these cases themselves. He also wanted the group to challenge one another rather than simply divide the writing.
“We’re not going to write. We are going to fight about it. We are going to have debates. We’re going to have discussions,” he recalled telling them. “We realized that to be fair to this chapter, we could not present one person’s view of the law, one person’s style or one person’s approach. It needed to be well-rounded.”
Some passages were revised six, seven or eight times before the group agreed they were balanced, clear and useful.
The chapter was designed for attorneys representing alleged victims and alleged perpetrators, as well as judges, appellate practitioners and lawyers new to the field. The aim is to help everyone involved in the process understand how the same case may look from different sides, where the evidence may be tested and what the court will need to decide.
“This chapter is intended to protect the victims, the abused and the falsely accused,” Judge Bishay said.
The process also changed Judge Bishay. He described it as “truly humbling,” particularly when the team reached questions the courts had not yet answered.
“To give something that is concise, precise and beneficial, I had to spend a lot of time studying, and the more I studied, the more questions came up that were not necessarily answered in law yet,” he said.
The ACLEA award recognizes not only the chapter’s breadth and detail, but the care behind it, including the competing perspectives, repeated revisions and willingness to leave room for uncertainty where the law remains unsettled.
For Bishay, the clearest measure of success may be simpler. He now uses the chapter to teach both law students and judges and has seen it work for readers at very different stages of their careers. As Bishay put it, “Nothing says success, in my opinion, than when you have a law student and appellate justice who reads it and says, ‘I really thought it was very helpful.’”
CEB helps California attorneys stay current on emerging legal and regulatory issues affecting their clients. Sign up for a free seven-day CEB trial to access practical guidance, analysis and tools that support confident legal decision-making.
