Common Misconceptions in Domestic Violence Litigation

Introduction:

Domestic violence is pervasive. Forty-six percent of women experience either sexual violence, physical violence, or stalking by their intimate partner within their lifetime.[1] For men, the figure is 44.2%.[2]
With such prevalence, it is critical that members of the bench and bar be accurately informed about the reality of domestic violence dynamics. Failure to do so risks restraining orders being denied where abuse actually occurred, which can further result in domestic violence victims being subjected to abuse that could have been avoided, and often escalated abuse; and children being subjected to abuse and trauma. To its worst end, filicide or intimate partner homicide may occur. This article seeks to prevent such outcomes.

I. Myth: Family law litigants are prone to file unfounded requests for restraining orders solely to obtain an advantage with respect to custody orders.

A common societal misconception about which the bench and bar should be particularly cognizant is that petitioners are prone to request domestic violence restraining orders (“DVRO”) solely to obtain an advantage in custody, and not because actual abuse occurred. This is because obtaining a DVRO triggers the requirement that the court apply a rebuttable presumption that the party found to have perpetrated domestic violence should not have sole or joint legal or physical custody.[3]

The scientific literature shows the opposite. Studies reflect that most women alleging domestic violence in family court are not fabricating domestic violence.[4] Most parents alleging child abuse and neglect are also not fabricating; research indicates that claims of child abuse and neglect are false approximately 2 to 4% of the time.[5] As the California Legislature finally acknowledged in 2023: “intimate partner violence and child abuse overlap in the same families at rates between 30 and 60%.”[6]

Nevertheless, empirical studies also reflect a “high level of judicial skepticism towards mothers’ claim of domestic violence and child abuse…”[7] In some cases, this can result in children being subjected to further abuse. The most extreme detriment that can occur as a result of these misapprehensions is that a perpetrator of domestic violence, during visitation, kills the minor children while in their care.[8] Even if homicide does not result, children may be subjected to ongoing abuse, which has its own ongoing repercussions: children’s brain, nervous, and endocrine systems are permanently impacted, as well as their psychosocial development (“personality formation” including morals, values, social conduct, capacity for relationships with other individuals, and respect for social institutions and mores).[9]

II. Myth: Once the parties live in separate households, there’s no need for a restraining order.

It is a mistake to believe that abuse ends after separation.[10] Domestic violence does not simply end when the victim leaves the abuser. One study showed that 24% of victims reported that the violence became worse after separation, and 39% of domestic violence victims reported the violence only started after separation.[11] The Legislature’s acknowledgment of this fact is reflected in Family Code Section 6301(a) which provides that “[t]he length of time since the most recent act of abuse is not, by itself, determinative” in reviewing a request for a domestic violence restraining order.

III. Myth: Since the abuse was only against the parent, there is no risk of abuse to the children.

A related myth is that since the abuse was against the other parent, there’s no risk to the children once the parents are separated. As noted above, too often abuse continues and risk of abuse to a child actually increases after separation of the parties. The California Legislature declared this reality with Piqui’s Law:

A child’s risk of abuse increases after a perpetrator of intimate partner violence separates from a domestic partner, even when the perpetrator has not previously directly abused the child. Children in the United States who have witnessed intimate partner violence are approximately four times more likely to experience direct child maltreatment than children who have not witnessed domestic violence..[12]

An abusive parent may then seek to abuse their former partner by way of the children, whether during exchanges, or in fomenting discussions purported to be based on the children. The Court of Appeal acknowledged this fact in the case of Ashby v. Ashby, noting that abusers often use custody and financial disputes as a pretext to continue harassing the victim..[13] All of these circumstances mean that the court should be circumspect when assessing whether the presumption against joint custody has been rebutted under Family Code Section 3044.

IV. Myth: If a child rejects the abusive parent, the victim parent must be “alienating” the children.

Related to the aforementioned myth, it is crucial that, if a child rejects the abusive parent, that the victim parent not be blamed. This perception reflects the misguided use of “parental alienation syndrome,” which has been rejected by most credible professionals..[14]

By re-framing a mother who seeks to protect her child from abuse as a pathological or vengeful liar who is severely ‘emotionally abusing’ her children by falsely teaching them to hate and fear their father, PA theory makes a self-described “protective parent” persona non grata. The PA label diverts courts’ attention away from the question of whether a father is abusive and replaces it with a focus on a supposedly lying or deluded mother or child…For all these reasons, leading experts have called the use of “parental alienation” claims against mothers in custody litigation “a national crisis.”.[15]

Understanding that “parental alienation” theory can be manipulated by abusers is crucial in ensuring children are not subjected to further abuse. If nothing else, a more nuanced inquiry should occur to understand the reasons for a child resisting contact.

V. Myth: A true victim will be sad, and not angry when she testifies in court.

A pervasive societal misconception is that if a person alleging domestic violence is “really” a victim, they will present in a particular way when presenting in court.

For the bench officer facing competing stories of whether abuse occurred, a credibility determination is key. The victim’s demeanor, by statute, is a factor for the court to consider..[16] This is where societal determinations are key.

As the Court of Appeal stated in In re Ma.V. (2021) 64 Cal.App.5th 11, 26:

We expect victims to be “sweet, kind, demure, blameless, frightened, and helpless” [citation] and “not a multi-faceted woman who may or may not experience fear or anger” [citation]. “These are the preconceptions that judges and jurors bring with them into the courtroom when they assess the veracity of a victim-witness’s story.” (Id. at p. 734, fn. omitted.) We encourage continued diligence and education to guard against such preconceptions.

Likewise, in Vinson v. Kinsey (2023) 93 Cal. App. 5th 1166, 1176 (2023), the Court of Appeal cautioned:
“ ‘[a]ll women exposed to violence and abuse in their intimate relationships do not respond similarly, contradicting the mistaken assumption that there exists a singular “battered woman profile.” Like other trauma victims, battered women differ in the type and severity of their psychological reactions to violence and abuse, as well as in their strategies for responding to violence and abuse.’ ” (In re I.B. (2020) 53 Cal.App.5th 133, 155, 266 Cal.Rptr.3d 814, quoting Dutton, Understanding Women’s Responses to Domestic Violence: A Redefinition of Battered Woman Syndrome (1993) 21 Hofstra L.Rev. 1191, 1225.)

In practice, a true victim may have low affect, a common result of PTSD. The victim may be angry in the face of the abuser’s distortion or minimization of what occurred. A victim may fall into a “fight or flight” mode where they are unable to focus on the question at hand due to being flooded. Or the victim may be tearful as societal expectations may occur.

VI. Myth: If no restraining order was requested, there must not have been domestic violence.

As discussed above, courts treat domestic violence cases involving children with skepticism. That obstacle aside, the nature of a legal proceeding itself is retraumatizing to the victim, who must face his or her abuser in court, and usually, hear their abuser’s denials in claims of victimhood. Many survivors, after years of living in the cycle of abuse, will minimize the abuse and not even perceive that the domestic violence that occurred is domestic violence..[17] Even where a Temporary Restraining Order or Emergency Protective Order has issued, abusers often use manipulative tactics to persuade a victim not to seek court intervention. In addition to the more well-known “cycle of abuse,” Amy Bonomi, PhD, MPH, developed the “five-stage model of recantation.” Through minimizing the abuse, playing the victim, and framing the couple as “themselves against other who don’t understand them,” the abuser persuades a victim to recant..[18]

In many instances, where the perpetrator requests a trial, the cost of taking the case to trial can be prohibitive..[19] A survivor in that instance may decide to dismiss the restraining order, so no “finding” is made. A survivor of domestic violence must often navigate pressures from family to find a more ‘peaceful’ way to proceed with a divorce; and many survivors simply wish to find a way to move out of the prior relationship without having to litigate questions or whether or not domestic violence occurred in court. In other instances, domestic violence occurred years prior, and the parties resided separately for a lengthy period of time prior to a dissolution being filed.

In short, for myriad reasons, countless survivors choose not to request a domestic violence restraining order. This is important for counsel and the bench to understand. An abusive party may, by agreement, share joint legal custody for example, and some time thereafter, the abusive parent may become abusive towards the children at a later date. Or, a victim may face paying spousal support, where domestic violence is a factor to be considered, consistent with the legislature’s policy against an abuse victim supporting his or her abuser.

Conclusion

Domestic violence litigation is unquestionably difficult for the parties, their attorneys, and bench officers. The stakes are high for the parties and their children, emotions are high, and determinations of whether abuse occurred and what is in children’s best interests is nuanced. This author’s hope is that the above information can assist all involved in these cases to best assist families and ensure that those who need protection through the court system receive it.

[1] Leemis R.W., Friar N., Khatiwada S., Chen M.S., Kresnow M., Smith S.G., Caslin, S., & Basile, K.C. (2022). The National Intimate Partner and Sexual Violence Survey: 2016/2017 Report on Intimate Partner Violence. National Center for Injury Prevention and Control, Centers for Disease Control and Prevention, 3 (Figure 1).
[2] Id., at p. 3 (Figure 2).
[3] Fam. Code section 3044. Of note, the presumption can be rebutted, but those requirements are beyond the scope of this article.
[4] Meier, Joan, Denial of Family Violence in Court: An Empirical Analysis and Path Forward for Family Law (2022) 110 GEO L.J. 835, 851.
[5] Leonetti, Carrie, Punishing Disclosure and Silencing Victims: How the California Family Courts Retraumatize Abused Children By Labeling Them “Alienated” (2023) 43 Pace L. Rev. 360, 367.
[6] Sen. Bill No. 331 (2023-2024 Reg. Sess.) § 2, approved by Governor, Oct. 13, 2023.
[8] Meier, Joan, supra, at 835.
[1] This occurred, for example, in the case of Dr. Amy Castillo (a pediatrician) and Mark Castillo. Where Mark Castillo expressly threatened to kill the children, but the court was dismissive of her testimony on this, and denied her request for a restraining order after hearing. She then dropped the children off for Mark’s parenting time as she was required to do by court order and Mark Castillo drowned all three children. (McCaffrey, Morse, and De Vise, Slaying Suspect’s Wife Warned of Risk of Children, Wash. Post (Mar. 31, 2008); see also, Testimony of Amy Castillo, M.D. in Support of HB 700/SB 823, available at https://www.washingtonpost.com/wp-srv/metro/pdf/HB_700_Testimony_Amy_Castillo.pdf.
[9]Putnam, Frank W. , M.D., The Impact of Trauma on Child Development (2006) Juvenile and Family Court Journal, 3.
[10] Brigner, Mike, Why Do Judges Do That? in Domestic Violence, Abuse and Child Custody: Legal Strategies and Policy Issues (Hannah & Goldstein edits., 2010.)
[11]Jaffe, Crooks & Poisson, Common Misconceptions in Addressing Domestic Violence in Custody Disputes (2001) 54 Juv. & Fam. Ct. J. 57, 59 (citing Statistics Canada, Family Violence in Canada: A Statistical Profile (2001) <https://www150.statcan.gc.ca/n1/en/pub/85-224-x/85-224-x2001000-eng.pdf?st=kq19hZ1q> (as of April 10, 2025).
[12] Sen. Bill No. 331 (2023-2024 Reg. Sess.) Chapter 865, Section 2, Subdivision (a)(2).
[13]Ashby v. Ashby (2001) 68 Cal.App.5th 491, 516.
[14] Meier & Dickson, Mapping Gender: Shedding Empirical Light on Family Courts’ Treatment of Cases Involving Abuse and Alienation (2017) 35 Law & Ineq. 311, 317-318 <“https://scholarship.law.umn.edu/lawineq/vol35/iss2/10>”https://scholarship.law.umn.edu/lawineq/vol35/iss2/10> as of March 17, 2025.
[16]Id., at 318.
[17]Evidence Code section 780, subd. (a).
[18]This author has encountered numerous such instances in her family law practice. In one instance, a party was distraught when her spouse filed a dissolution petition because she did not want to be divorced. Several months after the dissolution filing, she realized that she had experienced domestic violence during the abuse. Subsequently in the case, her adult children testified at length corroborating the abuse they had personally witnessed.
[19]Bonomi, et al., “Meet me at the hill where we used to park:” Interpersonal processes associated with victim recantation. 73 Social Science and Medicine 1054 (summary of 5-stage model available at https://recantation.org/wp-content/uploads/2023/12/Recantation-Five-Stage-Model.pdf as of 3/17/2025.)
[20]Of the 55% of Californians who face a civil legal problem in a year, 70% get no legal assistance. “Addressing California’s Access to Justice Crisis by Fundamentally Rethinking Legal Services: A Conversation with Stanford’s David Engstrom and Lucy Ricca.” <https://law.stanford.edu/2024/11/21/addressing-californias-access-to-justice-crisis-by-fundamentally-rethinking-legal-services-a-conversation-with-stanfords-david-engstrom-and-lucy-ricc/> as of March 17, 2025.