Well, hello, everyone. Welcome to this CEB Attorney's Briefcase Webinar. It's a little unique. It's entitled Can't Defend It, Gotta Deal With It. And it's strategic navigation of DV findings and family law. I'm Garrett Daily, and I founded Attorney's Briefcase thirty five years ago. And I'm now proud that it is a CEB company and I'm proud to be an editor emeritus with CEB. I'm joined by my colleague, Jillian, Doug and Heard, a partner at Cage and Miles. And our goal in this webinar is to offer practical, tactical guidance for navigating domestic violence findings in California family law proceedings. Our focus is on actionable strategies and real word application. This is not a policy debate or a theoretical discussion. We're going to deal with the law as it is, not as we think it should be, could be, ought to be, but as it is. So whether you're representing petitioners or respondents, our goal is to provide tools to effectively advocate within the current framework while maintaining compliance with statutory requirements. Now, as we all know, domestic violence findings in family law cases carry lasting consequences. Consequences for the clients, practitioners and the courts. And Julian and I are going to take a candid look at the current legal landscape where legislation expansion has made DFE findings easier to obtain and harder to challenge. And where judicial officers are increasingly constrained in exercising their discretion in these matters. Now this is not a seminar on how to defend or how to obtain DVR's. Rather than focusing on defense, our goal is to arm you with the tactical and narrative tools you need when a credible DV claim is made, number one. And two, after a DVRO has been issued. We're going to talk about reframing the finding, preserving client credibility, positioning for future proceedings, etcetera. Now, despite its current perspective, a DVRO is not a death sentence. That's what we want to get across. You know, people are flawed and imperfect. Now, the declared purposes of the DVRO are prevention and rehabilitation. It's not intended to be punitive. Punishment is not in the best interest of the child. Rehabilitation is. Okay, a little housekeeping before I introduce our primary speaker. This webinar is being recorded and will be available on demand in a few days. If you'd like to ask a question, put it in the Q and A box and hopefully we'll have time to deal with it. The continuing legal education certificate and slides were sent in the webinar reminder email. You can download them from there and will also be sent out again tomorrow. Now, the slides you're going to want to download and review them. But this is a little bit different. This is not intended to be a how to do it course or a substantive course on the law. We're going to it's intended to be a dialogue, a discussion about these complex issues. So we're although we're going to generally follow them, we're not going to project them on the screen. So it might be helpful because you can follow along with us. But we're you don't expect to see them on the screen itself. Now, here's what we're going to talk about. First, we're Gillian's gonna deal with the big picture concept context, how DV law got where it is. The finding has been made. Now what are you gonna do? Okay. So your client has been found to a committed DVR. DVRO is issued. What happens next? We're gonna talk about navigating post finding custody proceedings. We're gonna talk about a view from the bench, what judicial officers need from us. And then finally, some real world practice tips you should consider implementing in your office as soon as possible. So, Jillian, I'm gonna start with this situation. Someone has come into your office, a client, they have been credibly accused of domestic violence. Okay? So this isn't a she makes me feel uncomfortable type of thing. This is, you know, your guy or gal, they did it. So how are you gonna deal with it? So the first thing that I'm gonna do, Garrett, and and let me preface whatever I'm gonna say today and whatever Garrett's gonna say today is there there are thoughts, there are practical tips, and by all means is there going to be additional ones? Yes. Are there going to be things that we are suggesting that you may try that won't work? Absolutely. We're in a fluid system. We're in a fluid area of law, and every judicial officer is going to exercise its discretion differently. And that's a beauty and a curse to what we are doing as practitioners in family law. But what we're doing is providing information and we're trying to advise our clients in the best way possible to yield them either their intended goal and or to try to get nearer to that goal. And so what that is, is information and they get to make the choice. So when somebody comes into my office and there is a credible finding of DV, which we're going to talk about is very expansive, that your idea of what DV is and how expansive it has been really is so wide that everything that you have before you typically is going to be in some vein credible. And so you have to provide kind of two paths to anybody that comes in to say, here's your option to defend it. Here are the pros. Here are the cons. Here are the risks. Here are the benefits. And here are your here's your options to say, we can't really defend it, or maybe we're gonna try to stipulate around it, but here's what's going to be the downstream effects of this domestic violence finding on your case as it relates to custody, as it relates to finances, and those types of things. So you're basically outlining for this prospective client two options. One, you're gonna fight it. You have an opportunity to be heard and you have that right and you can exercise it and you wanna go through all those motions and what that's gonna cost, what it could mean downstream on other issues later. And then you're also gonna outline, alright, here's an alternate path, which is let's not fight it and let's fight something later down the line. That's what we're gonna talk about today is this kind of second path, because you could spend a whole day talking about here's the strategies in which I'm going to defend against this. We're not gonna do that, okay? And so that leads me to why I make the comment that there should be some credence of credibility given to all domestic violence allegations, and that's a controversial statement, but if you're working in family law right now and if you're a judicial officer in family law right now, you know how expansive DV and the definition of DV has become over the last decade. You can see it in the amount of cases that we get from the appellate courts and the Supreme Court with regards to Domestic Violence prevention act, and they are almost always published. What we don't have is that we don't have a published opinion from a trial court where their denial of a domestic violence restraining order has been affirmed. That's I'm not gonna make any comments on that, but if we had that case, I think we'd have maybe a little bit of a pendulum swing back in regards to this not feeling like a death sentence for people, for practitioners to want to engage in this area. And I don't know how many people are like, I just don't do DV. And maybe they're not the people that are in this particular webinar, but you've come across them. I don't do DVA. I refer all of those things out. Because it is hard, and it's hard to manage expectations for clients. And that's because violence in the traditional definition of violence is not necessarily it, right? Like, that is not just it. That is the easiest to say, oh, you have pictures of bruises and you have a video of physical violence, whether that's pushing, whether that is grabbing somebody's cell phone out of your hand, whether that is an actual physical hit, choking, any of those things, that's per se violence, definition of violence, physical violence, and it's going to warrant an easy satisfaction of ponderance of the evidence to have a restraining order granted, and it's going to likely be for years. It's the other definitions that are becoming much more prevalent in terms of allegations and that we have cases that are defining disruption of peace. We have an expansion of the definition of what is coercive control. And now we have cases that came out last year where it's not it's not an objective standard, it's a subjective standard. Is it that person? What do they feel? Is it destroying their emotional calm? So whether it is depriving somebody of the basic necessities, whether it is controlling their movements, whether there is reproductive coercion, whether there is a pattern of behavior that is going to destroy someone's emotional calm that may rise to a level of domestic violence. And let's just take that thought for just one second. You're getting divorced or separated or you're breaking up with somebody, and there are allegations that there is a disruption of somebody's peace. And it's based on your subjective belief as to that disruption. There's a reason you're breaking up. There's a reason you're getting divorced. You don't like that person. Their mere existence, the mere way that they breathe or eat cereal or any of those things could be in your mind, that is so disruptive to my piece that I cannot move. It affects my functioning. I'm adding levity to a situation and dialogue that is very serious, I'm not trying to be callous towards victims, but I am saying that that subjective standard is very problematic. It's problematic for practitioners in terms of how are we assessing this? And I assess this to say there is risk in absolutely any domestic violence allegations going forward in a contested hearing. And setting up that expectation and managing that expectation so that when you go through, let's say you choose option one, you go through and that restraining order is granted on a disruption of peace allegation or something along those lines, which is a pattern of conduct that's not going to be physical, is going to be something else, and your client is up in arms about it. You want to have prepared them for that reality. So then, now what do we do? Okay? We have this expansive definition of what domestic violence is in the family law context. K? And so we have to look at what are we doing from the onset. Well, I've said, let's manage expectations, providing the information, providing the paths. But now that we have that, k, do we look at something and say, let's try to stipulate around this? And how do we do that? Well, I think there's one of two ways. The first way is to see how long we can keep a temporary in place. And this is going to be very specific to your judicial officer. Typically, don't see judicial officers keeping temporary restraining orders in for more than six months. I think three to six months is a more reasonable request. And what you're trying to do when you negotiate these things with your opposing counselor or the opposing party is to say, let's keep it in place, let's have this cooling off period, continue, let's ensure that we're resolving, that we're doing things that are going to resolve the underlying circumstances that led to the filing of this restraining order. Doesn't mean you have to admit to the domestic violence. It doesn't mean that you have to concede to it, but that we're going to work on some things and keep the protection in the space in place. Okay? You know, but I think it's important, not only important, crucial, that during that period, you make it crystal clear to your client that they abide by it, not only in the spirit but to the letter. Because the violation of a DVTRO, even an innocuous part of it, it will almost guarantee the issuance of a DVRO later. If you have violated provision of a DVTRO, don't expect that the court's gonna overlook it. Even if it's quote a trivial violation. You know, oh, I drove by the house because I wanted to go to my neighbors or or you know, if it says one hundred yards away from the house, you know, make it two hundred. You know, really, really, really abide by it. And the other point I just wanna make cause I think your point is so well taken. You know, Mark Juhas, Judge Juhas is a firm believer that one of the problems we have with the VDPA is its name. Because it's no longer, I mean, you say domestic violence, to me that comment, there's a connotation of something physical. And what his point is, is it's really the domestic abuse prevention act. Domestic abuse, not domestic violence. You know, and you know, it's hard to get some people's mindset around that, as you're saying. It's now, you know, I would say the minority of the cases I see involve some sort of physical violence. Now it's coercive control. It's disturbing the peace, know, hacking, stalking, that sort of thing. And then you have to deal with convincing your client that that's gonna warrant a fifty two weeks batterers program, you know, for conduct that was not physical. You know? So all of this is stuff that you have to deal with. Anyway, excuse me. Go ahead. You know I love when you interject, Garrett. I learned so much. But a hundred percent agree with you. Your point is absolutely well taken that if you are going to stipulate and extend a temporary restraining order for a period of time, you absolutely need to be advising your client in the most conservative ways and saying, you don't go near, just there shouldn't be communication unless it's about x, y, and z and it's within the confines of the stipulation. But that's how I sell it. I sell it by saying, I will add language into any stipulation where we are continuing out a temporary restraining order for a period of time that says, if there are any violations, that we will set a hearing and that there can be an extension of the restraining order or request for the restraining order after hearing to be issued. And so you're essentially punting it and hoping that good behavior and these remedial things that we're gonna talk about next are going to alleviate the issue and that you can move on from there. But that's how you, for lack of a better word, sell it to a protected party is saying, no problem. We'll continue this. You'll stay protected. And if there is any conduct that is continued domestic violence, that you can then we can have a contested hearing on this. Now language matters very, very much because the way that you frame this is that there needs to the the the language that you put in there needs to say that what's happening with their allegations. Are you going to be dismissing with prejudice all of their allegations that have been previously made once the restraining order is dismissed? Or are you going to allow them to be able to assert them later even if the temporary restraining order dismisses? And this has happened to me where we put in, you know, language that says that after six months, the restraining order is going to expire, absent there being any violations, allegations of violations and findings of violations of the restraint, the temporary restraining order. And we got it dismissed, but there was another that person wanted to pursue all of the allegations at a later time, and we did not foreclose that possibility of them doing it. Do I think that you're going to be able to get a lot of people to say, well, I'm going to dismiss all of my allegations without prejudice on a six month restraining order that's going to continue and then expire? Probably not. So you need to, again, explain to your clients that this may not be the end of this, but it is something that will alleviate any of the very problematic things that come with a restraining order after hearing, which is, you know, there is a whole long list, but you're trying to avoid that. Obviously it's going to pop up on background checks in a different way. There are many different things with regards to employment that are problematic with a restraining order after hearing versus a temporary restraining order that just dismisses. So Hey. I'm I wouldn't I I'm not a a hundred percent confident. Although it's worth a try. But I'm not a hundred percent confident that a stipulation that past allegations of DV are, quote, dismissed with prejudice would stand up later. I can guarantee you that they will be alleged again. And whether or not that stipulation will have a preclusive effect or not, I kind of doubt it. But we haven't had that case. We haven't had that case. We haven't. And right. And so we're just arming ourselves to say, okay, this may work, this may not work. And again, this is just you being very upfront with your clients to say, this is what I think that you can do now, but it does not come without risks. It does not come without the, you know, we're foreclosing the possibility that this is not going to be, you know, alleged again. And I think one hundred percent with regards to custody visitation, even if you did say that these are, you know, these are dismissed with prejudice, that they can still be alleged in custody visitation litigation. It's a matter of can it be alleged again and then a new restraining order sought on those same allegations. That's more so what I was focusing on in that. But I think that you cannot foreclose the possibility of those things being alleged with regards to custody visitation. I think that that's an automatic reversal and I Yeah. You're gonna be Anyway. Up there. Let's move on to, okay, now during the DVRO hearing itself, okay, you're litigating the issue. How, well, let me rephrase that. Let's assume that a DVRO is going to issue. All right. So how are you gonna work with the court to try maybe limit the scope of it, to frame it, to make sure that the language is clear so your client knows precisely what she or he can do or can't do? What are the considerations there for you? So the consideration is going to be what is going to happen in six months to a year with regards to custody visitation. That if I am thinking about those things now, that I need to be advising my client how to deal with those things when I expect that they're going to come up. And I'm also talking about a situation where the DV itself is likely going to be granted but it seems to be more tactical rather than protective. And you don't want to necessarily say that because you want it to come out later. And what I'm referring to is somebody that's overplaying their hand and that is going to come out over time with regards to their true intentions for filing that restraining in the first place. Was it to protect themselves? Maybe initially. But how are they utilizing that restraining order in the domestic violence allegations in future hearings and and and litigation? Is it because they want more money? Is it because they want more time? Is it because they wanted the house? And we all know because we've had those cases that people are doing those things not for the protection, but for what can be achieved with that without notice to somebody on an automatic basis and you gain a lot of leverage in that way. What I'm suggesting is that if you can either stipulate to some sort of longer lasting TRO and or you stipulate to a restraining order after hearing, which does also come with some risk, and we'll talk about those, is that you define what the violence is. And the reason I want people to start defining what the violence is, not only in stipulations, but also in terms of what you understand the violence to be and maybe even a response to the domestic violence restraining order, is based on the phenomenon that these DVDs grow legs and that the stories grow legs. And the case law does not preclude somebody from making allegations of domestic violence that did not come within their initial request, but they're still able to bring them up at a, later hearing. But if you're stipulating saying that the domestic violence was a course of conduct, that there was text messages all in the night and it destroyed somebody's emotional calm because they never knew when that person was gonna call and maybe they were showing up at that person's work and now those things have stopped. What you're doing is defining the behavior. You're addressing the behavior, and we'll talk about what you would do specifically to address that type of disruption of peace behavior. But that now when other allegations are made later, say in a custody visitation hearing and or that on that issue, that it starts to make those allegations seem tactical. It some it it starts to maybe shed light on the fact that these might not be credible because they were never mentioned at the outset. And so there's two reasons other there's another reason why we would also want to define the violence that's being alleged and what you're you're stipulating has occurred because it also shows introspection in the person that is trying to rehabilitate themselves. And they think that that is very genuine instead of somebody that's going to just be ticking boxes to do classes or therapy, that they're saying I was complicit in this conduct and this is what I did and this is how I'm going to address it going forward. So, has by defining what the abuse is or defining what the allegations and defining what you're stipulating to, can have two effects. One is that introspection and two, to start to bait somebody into potentially growing the legs in a non credible way. Okay? So then, how do we remediate this? We should be doing that right away. And so whether you're going to challenge it or not, if you think that this has even a chance to be granted and or a finding stuck with it even if a restraining order isn't granted, you need to be advising your client to get into therapy right away. You need to be advising your client to do parenting classes right away, co parenting classes, domestic violence classes, and anger management class. Any of those classes would be, absent domestic violence and absent the anger management, would be good for parents that are getting divorced, right? I mean, go do some therapy, absolutely. Go be introspective, you're going through this, you're going to need some coping skills anyway and a therapist is likely going to be cheaper than me. Parenting classes, hey yeah, you have been a parent, but maybe you can be a better parent. Is it worth a three or four hour class online? Absolutely, You're showing that you care about this issue in a way that you maybe haven't shown your spouse or maybe you haven't shown your kid. Even if you have, it's still gonna be beneficial in some way, some shape or some form. Co parenting is an easy sell. Do you give that recommendation before the DVRO is issued or so that's actually almost a militarist. In other words I think so. We also have always had, we have cases where things are going fine until they're not. And now you're dealing with a restraining order hearing. And now you have somebody that you've already told in the initial consult like, Hey, you've got kids. Why don't we do, why don't I pair out, let's do this parenting class, or why don't you do this co parenting class? And you know what, have you had therapy? Maybe you are, great. Maybe you're not. I would advise you that maybe you wanna consider going and talking to a therapist. And it may seem overkill, but because these cases can pivot in an instant and change dramatically based on the fact that they didn't like the way that exchange went. Okay, maybe there were some yelling, maybe there were some text messages that weren't so great. You're going through an incredibly stressful time. Let's give you some coping skills so you can maybe avoid some of these things. And or if you find yourself stuck right in the middle of it, you're already on your way to saying, you know what, I started doing these things. And the other thing is if DV is now affecting the middle of your case when it wasn't the original thing that you were doing, I think that there's an angle for a practitioner to just take and be like, my client has been doing some work and this seems to be tactical and these are the reasons that I think it's tactical because my client is doing this work. But I think anytime that you're doing a class, in therapy, you're doing a parenting class, a co parenting class, you want to put into your pleadings and you want to be able to communicate to the court what you are learning from those classes. So, if you're in an actual contested trial and you have your client up on the stand, you better be asking them, what did you learn from this? Tell me some of the skills. I can't tell you as a practitioner how many times I go up there on cross examination and be like, what class did you do? What did you learn? And they give some really bad answer that shows that they didn't learn anything. They were checking a box. It has to be more than checking a box. It has to be authentic. There has to be good participation. There has to be something that you get out of that. Maybe it's not every great thing, but there is something that is going to be relative and tangible to your children's best interest because that is what we get to when we talk about three thousand and forty four and how you are rebutting these findings. So if you are doing these things early in your case, as you get into future litigation, because we all know it is going to be future litigation on all of these custody issues, and the original orders that you get with regards to custody are not going to be something that your client wants. Your client's going to want more. Your client's going to want more time. And based on the finding, while there's a thirty-forty four finding in place, they cannot have equal timeshare. They cannot have, even if it's in name only of, hey, they have sole legal, sole physical custody, but you have essentially fiftyfifty, that's not going to happen. The case law says that it can't, and it will get reversed if that is challenged on appeal. So you know that there's going to be future hearings on custody visitation, and now we're just trying to get you five or six steps closer to where you potentially could want to be. I don't know what your clients are going to want, but that you're not just kicking that can down the road and say, we'll deal with it later. No. You can deal with it now and start to make really important strides for your client. How do you deal with the situation, though, where you have a client that is really resistant to therapy or these mitigation tactics. I didn't do it, you know, or, you know, how do you deal with that? And also, also at this point, let's also start talking about six thousand three hundred and forty four too, because it I think that's also a crucial factor that your clients need to understand. So I'll start with, like, a resistant client. The likelihood that they're liking anything that I'm saying is probably pretty small, but I will have said it. And when they go somewhere else and all of the things that maybe I had thought were gonna happen, happened, It's somebody that's gonna come back around and maybe be changed and or ready and receptive to what you have to say. But on the whole, I do think that people are receptive when they are scared. And if you can tell people the realistic fears that they should be having and now how are we going to deal with them, it's solution oriented. And I think that people do wanna be solution oriented. The people that are truly resistant aren't gonna be listening to you anyway. And they're what you need to do is make sure that you've put in an email, I've advised you that this is a risk. I've advised you that, you know, this is a possibility, that if you're putting those things in writing, that you're insulating that person from coming and blaming you for what happens to them later if you should be representing them. But if they are truly resistant, you know, there is another thing that you could potentially do which is is tactical empathy. So, I hear what you are saying. I hear that this feels unfair to you. I hear that this is something that you didn't expect and this is shocking. I hear those things that you're saying. And I'm going to help you deal with them. This is how I would propose that you deal with them and for these reasons. Sometimes they just want to be heard and you don't have to disagree with them that this is unfair because I think a lot of us would say there's problems constitutionally with the way that domestic violence restraining orders are obtained right now. The limiting of judicial discretion in the granting of a temporary restraining order based on the case that just came down last year that says you have to look at those things as if they are true, in a light most favorable to the moving party in regards to granting that temporary restraining order. You are seeing less and less temporary restraining orders being denied on that initial review because of that standard that's been set out that says you have to make explicit findings as to why it's denied and why the protection will is not necessary and or that this person will be protected without a restraining order. And so I think that the judicial officers are really feeling constrained and afraid to do and exercise discretion in a way that we want them to because of these cases. That's why it feels unfair. So you can feel that too and use that same tactical empathy to try to pivot your client in a way that they're not going to initially want to go, but if people are reasonable, if people really look at the the goal as I want to get you back to where you were, I want to get you back to to seeing your children. It's a new reality. It's a new day. I hear what you're saying, but this is how you're going to have to get there. And by all means, go talk to another attorney. Everybody's got a different viewpoint. That also potentially lends trust to you because you're not trying to sell them. You don't need their business, especially if they're going to be a problem. But hey, go and go and talk to somebody else or come see me later when you realize I was right all along. Okay? Thirty Do you also yeah. Go ahead. Talk about sixty three forty four because I think that also is a significant factor in avoiding the three day DV trial, you know, the request for discovery, etcetera, etcetera. Right. I think hands down, you know, a domestic balance restraint order is going be granted when you have some of those egregious facts or those text messages or those emails or video or photos. Defending it is not a wise decision, and that's because we now have sixty three forty four and the amended version, which makes it nearly impossible to not have fees, granted against you unless there is a financial hardship. But even then, some fees are going to be granted. And and it's we know how expensive this can be. And depending on the severity of the domestic balance restraining order, those sixty threeforty four fees are going to be substantial and so you need to be telling your client this is a huge risk to you and this is what it will cost and be very realistic about that cost in terms of defending it. I have taken the strategy that if I make a well reasoned offer to stipulate to a restraining order for a specific period of time and I put those things in writing and it is denied and we go through, say, a one and a half day or a two day domestic violence restraining order, that when you go and deal with the sixty three forty four issue, it's my belief that that my efforts to try to avoid that restraining order hearing because I stipulated to it, and ideally, the court did exactly what you would have stipulated to. Are those fees reasonable when you tried to avoid them? I think that it it it may be a basis for the court to, oh, I didn't realize this happened. Did we need to go through this entire exercise for you to get six more months or to get one more year? When I didn't even grant that. It's a strategy, especially in those egregious cases where you know your client's going down and the opposing counsel won't budge on a restraining order timeframe that's more reasonable, that if you have to go through those motions, it's a tactic to say, we tried, we were, you know, reasonable and exerted good faith efforts to try to avoid these fees and that should be a consideration in this court, maybe reducing the amount of fees that are granted. And then you think the other part of that statue, if you're defending this Before we get to that, I had a question here from one of the attendees. This is what you're talking about a stipulation. We've talked about that a number of times. She wants to know if do you mean a stipulated clutch DVTRO or a just a a separate, you know, family law stipulation to avoid certain conduct conduct. What type are you talking about? Yeah. I'm talking about two two types of stipulations. One is a stipulation to continue the TRO for a certain period of time, and then I'm secondarily talking about a stipulation to put in place restraining order after hearing. And so with your written stipulation, you are going to have a restraining order after hearing. And I think that there's a consideration for both. Obviously, one is more ideal of the temporary and having that expire. But there is when we are looking at these things, depending on what facts you have, you should be talking to your client of, well, maybe we stipulate to a six month restraining order after hearing. And I'm sure that there's a bunch of you right now that's like, Jill is crazy. Why? Because a renewal is so easy to get and I don't disagree with you. It is so easy to get. But when you have sixty threeforty four mounting down on you, you have thirtyforty four mounting down on you with custody visitation and you have a standard by which a lot of domestic violence under the DBPA is going to be granted. You can't discount those considerations. You cannot discount that in terms of the advice that you give to your client. And ultimately, it's not you making this decision, it's the client saying, I hear what you're saying and I am risk intolerant, so I'm going to choose this. Or, I'm okay with some risk and I don't think this is right and I'm going to do this. It's all about arming you with some strategies to say, this is how I'm going to talk to my client and if they choose this, this is the path that we're going to go down. We're going down just one of those paths. But the renewal is also something that you got to advise them on. If you stipulate to a restraining order after hearing, it's not going to take much because the standard is different on a renewal. However, if you're doing some of these things, that that renewal is something that you may have a better ability to defend against and challenge later depending on how far away it is. I think that answered the question. So I want to go back to 6344B and just put in everybody's heads again that the court has to find that it's frivolous if you have prevailed on defending against a restraining order. It's not you get your fees, you only get your fees if there was some, it was frivolous. And I don't think that there's gonna be a court that's gonna say that it was frivolous if they granted that TRO based on the standard by which they are required. And I think it's really easy to defend to say it wasn't frivolous. And so I haven't seen and I haven't experienced somebody prevailing on a six thousand three hundred forty four fee request under subsection B because they prevailed because of that language of frivolous. And again, this is what feels unfair. It feels like it shouldn't be this way. And so then let's get to the DVPA and how do we use some of that language to help shape our arguments. And I'm saying shape your argument now and then continue with that theme over time. And one of the things that I think is underutilized under the DBPA is sixty two twenty. What we are trying to do is seek resolution of the causes of the violence. If that is your focus, that is a really good theme to try to bait out or have somebody overplay their hand as to why they were doing this. Because time and time again, what is happening is that people are expanding what is violence. They're never getting over the violence. They become more traumatized even when there has been no violence for a long period of time and they've had some measure of protection, whether that's a TRO or a restraining order after hearing. And then over time, anything that happens, Our Family Wizard, they're messaging me too much on Our Family Wizard, or they're showing up at doctor's appointments when they never showed up at a doctor's appointment before and that's because they want to see me, it has to do with me. And so over time, that will start to, and the way that you're going to frame it is to say, that's somebody that cares more about this domestic violence and punishing me than it is moving on and showing rehabilitation. Because everything that that person is doing is going to be cast in a light most negative. It will only be interpreted in a way that is, this is continued domestic violence. And that's just not credible over time. And I think that judicial officers will be primed and ready to say, no, I see you doing classes. I see you doing the work. I'm actually reading these messages and they do not seem unreasonable. Or going to a doctor's appointment or a dental appointment because it was on your time. That makes sense. And obviously, these are very fact specific inquiries and you have to have control over your clients to say, you need to not be stepping out of line, and you need to not be doing things that are going to, you know, push the limit. But if you're if that's your record, that you're going to be able to defend ideally against these litigants that are overplaying their hand with regards to their original domestic violence restraining order allegations. So Jay, let's move on to rebuttal factors. So in other words, the DVRO has been issued and now you're back in front of the court asking that, you know, maybe defending against a renewal, for example. Or you're going to file an affirmative RFO now asking for more custody, joint custody based on the fact that you believe your client has complied with the letter and spirit of three thousand forty four. Let's talk about that a little bit. How do you deal with that? Yeah. So everything that we've talked about is geared for this fight. You're not fighting up front because you want to really put in the time and the effort into this battle, whether that's by way of an RFO or a later trial or something like that. The meat and potatoes is making sure that thirty forty four is applied correctly by your judicial officer. And that is because you have put points and authorities in front of them. And I everybody talks about thirty forty four and and we we think we know what it is, but then I see it misapplied all the time. And typically what's getting judicial officers in trouble and these reversals on appeal is that they're misapplying the law versus exercise of their discretion. So if they're applying the law correctly, their exercise of discretion is going to be a harder standard on appeal to overturn them with. And so your first goal is to make sure, are they applying the law correctly? And it's not super clear, it should be, it's set up to be these factors, but everybody focuses on just the factors. When you go in there and it's just like, well I've done this class, I've done this class, I've done this class, and I've done this class, that's the second part of the inquiry. The first part is the best interest of the child without considering frequent and continuing contact as a basis to rebut. And it all really goes back to the best interest of the child, family code section three thousand twenty, and whether, on balance, is it in the best interest considering the this child as well as these factors that the presumption has been over re rebutted. On balance. That's the keyword. That is what says that this court can exercise discretion in terms of what this person has done to rebut. What is relating directly to the child's best interest and what is this person done with regards to those other factors. So the classes. And Garrett and I had discussion about batters intervention class. Is it mandatory? Do you have to do fifty two weeks versus twelve weeks? Well, there's case law that has been upheld, and actually I would have Garrett go into the fifty two week betters intervention program because I think it's also a pattern based on county that you're in, and you need to know your judicial officers, you need to know the county and what their tendencies are because for the most part, I don't see a ton of fifty two week batterers intervention programs being ordered when there's disturbing the peace or if there's course of control. Obviously, I do see it much more often granted when there's physical violence or, you know, threats of violence, threats of physical violence. But a judicial officer, I think, is well within their discretion to order a batters intervention program that is less than fifty two weeks. But Garrett, I don't think you agree with me. Is that correct? Well, you know, it's not that I I I don't know, Julian, because, as as I think everybody knows, you deal with this at the trial court level, I deal with it at the appellate court level. And it's a real deal there. About half of my cases in the last year have been either on one side or the other of DV orders, either defending them or attacking them. And I'll tell you quite candidly, if I'm representing the respondent, I'm one hundred percent a winner. If I'm representing the appellant, I'm a one hundred percent loser. It's very, very difficult to overturn a DVRO finding. My problem is that three thousand and forty four talks about the rebuttal factors and 2A says the perpetrator successfully completed a fifty two week batters or a batters program that meets the criteria outlined in the penal code. And the penal code very specific, fifty two weeks, two hours a week, you can't miss more than three in a fifty two week period, etcetera, etcetera. But that section ends with a period. You know, this is a rebuttal factor completing this course. Sections B and C talk about alcohol and drug counseling or parenting classes, comma, if appropriate. If appropriate means the court has discretion. The top one ends with a period. And, you know, I'm interested in what trial courts are doing. I know what we actually don't have any cases on this question. So, you know, I'm interested in your trial experience that you see judges one either not ordering them or two ordering them for shorter periods of time. Now, if I have the option and I'm representing the person that has is subject to the DVRO, obviously, if I can get the court to not order that or to order it for a shorter period of time, I'm going to do it. And then I'll take my chances on appeal because again, at this point, from my perspective, it's an open question. I know there are people who disagree with me on that. But I'm interested in your real world experience. So I do not believe that it has to be granted. I think it's within the court's discretion whether to grant it or not when they issue the restraining order. And I also don't believe that you can stipulate to it without a court order because the fifty two week batters intervention programs won't allow you to participate unless there has been a court order. But I think that if it has not been ordered and the court on balance is considering the additional factors under three thousand and forty four to B or A to B that if it has not been ordered, that is their consideration. I did not order this. They just have to consider it. And then you are relying on balance, they have completed these things and you know the passage of time, the child's, you know, child has these particular issues that it would be in the child's best interest for the presumption to be rebutted. I will also point out that there's a case, it's a, it's SY versus Superior Court. It's a two thousand eighteen case, which is twenty one twenty nine CALAP fifth three twenty four, which upheld a court ordering a twelve week intervention program versus a fifty two week batterers intervention program. But we did talk about this and that was about four months after the Jamie G. Case was affirmed, I'm sorry. When the Jamie G case came out, which essentially codified was codified later in three thousand forty four as to the factors that the court had to consider in in the rebutting that presumption that it is in the detrimental to a child to have sole legal, sole physical custody to a a parent that's committed domestic violence. So, there's it the inner workings of the timing on that may make this a risky thing that I'm saying that you don't need a fifty two week batterers intervention program and that it can be less than fifty two weeks. But the case law that we have right now, that one says that it can be less than fifty two weeks, which would be not meeting the criteria of that penal code section. But either way, what I've already told you is you're doing these classes. You're telling your clients to do some form of meeting these three thousand and forty four requirements at the onset of your consultation, at the onset of your representation, so that they're down the road in terms of the completion of those things. So then it comes down to, do they have to be completed in order for the presumption to be rebutted? And we do know that the court cannot condition a modification of the legal and physical custody based on a condition that's going to happen in the future. They can't do that. That is, it's going to be reversed. And so, do you have to complete it? And I think that if a fifty two week batterers intervention program has been ordered based on that period and based on successful completion, I would say that judicial officers are going to want it to be completed before three thousand forty four is rebutted. However, if they consider on balance the progress that has been made and maybe some timing or logistical issues that are outside of the control of that litigant that is trying to complete them, I think that the court, if it's exercising its discretion on balance with the policies of Family Code Section three thousand twenty when they're applying three thousand and forty four, that would be harder to reverse because it would be an abuse of their discretion to say that this progress is satisfactory based on X, Y, and Z. I think one really important point that you've hit on too and I just want to stress is making sure that the DVRO orders are as specific as possible. Because one of the things I stress is that clients need to keep a log, a very detailed custody log of their, know, at the beginning of the case and throughout the case and especially after a DVRO is issued, keep a log from, you know, and is simultaneously contemporaneous log of the incident so that if, you know, when it comes up for renewal or you're making a motion to for custody or increased visitation based on the completion of the three thousand forty four factors. You have a very, very specific log from your point of view admittedly, but specifics. Specifics in my experience always prevail over generalities. He's always late versus no, here are the times that I showed up, that sort of thing. We've got just a few minutes left. Can you give us what you call your Monday morning tips? Yeah, framing every remedial action from a place of safety, rehabilitation and compliance in all of your subsequent pleadings. So, if you focus on compliance, safety first, and rehabilitation, that is how you're focused on your stuff, and it will help bait somebody to overplay their hand. And that language comes directly from the code. My Monday morning tip is relate this back to a dependency proceeding. A dependency proceeding is focused on rehabilitation. Everybody is in there to say, let's get them out of this proceeding and move them back into family law so that they can, you know, can be a family again or they can have these relationships again. In family court, we don't have that. We have people that have different goals and different alignments, but ultimately if you can relate it back to rehabilitation of let's give you the tools and we can provide you these services that you're going to be better off. The problem is family law doesn't provide services in the same way that dependency court does, but I've found that that argument resonates when you see people that are utilizing the DVPA and the remedies within the DVPA in an inappropriate way. So if you focus on those things in all of your pleadings and you have your client do the hard work, those things are highlighted over time, make your client more credible over time, and I think that judicial officers are just so, this is gonna sound crass, but thirsty for people that are doing those things versus engaging and embroiling themselves in this conflict, focus on yourself, focus on your client, focus on your own path, which is purely related to I'm going to be a better parent, I'm going to recognize what the folly in my ways, and this is how I'm going to do it, and I'm going to not just be checking boxes. And if you're framing those things, that will that will come out and be highlighted over time to the judicial officer, and I think they're gonna be very receptive to it. Because as you get away from the DV, they have more discretion that is going to be really hard to disrupt on appeal. You know, one of the things I love about your approach is you're taking the long view. It's not just a knee jerk reaction. You know, let's go to court, let's fight this, etcetera. And it also has got to be refreshing for the trial court judge to see someone who comes in and says, yeah, I sent these nasty text messages. I was insensitive. And here's what I've done. And there was one question that says, you know, would you recommend even if the judge hasn't ordered, let's assume it was that type of conduct, but the judge hasn't even ordered class. Do you think it would be helpful maybe to recommend to your client to complete a class, even if not ordered, just to bolster the motion that's coming in six months, a year. In other words, taking the long view to getting them back the custody that they want. One hundred percent. And I'm not just taking the long view because it's good for business, because ultimately it's not good for business, but the long view is what is required with three thousand forty four with TV, patience. But you have to be setting your client up for that expectation. So these things happen bang bang, right? You're getting a TRO granted without notice, you have a hearing within twenty one days, and they feel like their entire world has collapsed. And now you're the one that's telling them, you're gonna be in this purgatory state for about six months to a year potentially before you potentially get to where you wanna be. And if if you don't tell them and it happens, you're gonna be on the hook, and they're gonna they're never gonna trust you again. But if you tell them and they're ready and they're they're willing to be receptive to that, great. And then the third thing is if they say, no, you're not the attorney for me and these things happen, you've got business on the other side of it as well. But it's just the reality of where we're at with DV stuff right now. You know, I've learned a lot from this, Jillian. Thank you. I think this has been really, really refreshing. And again, thank everybody who's attending. CEB, you, attorneys briefcase does as well. And we hope to see you at a future CEB webinar. Thank you all.