What can I do if Respondent is evading service?

When conflict is high and there may be issues of domestic violence, we often see that Respondent’s avoid service. Typically this is because they are aware that they have done something unlawful or inappropriate and they are trying to avoid the legal system. Unfortunately, the decision to evade service can be extremely costly to the Petitioner or the person asking for the protection.

Thankfully, in 2018 the law was amended such that under Family Code 6340, if at the time for a Temporary Restraining Order hearing the restrained party has not been served and it appears that s/he is evading service, the Court has permission to order an alternative form of service.

This means that if you are having trouble serving the other side for a Restraining Order hearing you can now as the Court to order service by an alternative means.

If you are having difficulty with serving your ex, Contact Amanda at Amanda@gordonfamilylaw.com to learn more information. 


Can I ask the Court to order reimbursement for property damaged by my spouse/partner?

California law allows for restitution under the Domestic Violence Prevention Act or Fam C §6342. The Court cannot order a restitution award unless the Court first makes a finding of abuse after a noticed hearing.  

This statute provides that the Court, after a noticed hearing and a finding that abuse occurred, may order the respondent to pay restitution for certain expenses and losses. Importantly, the Court must make a finding of abuse before awarding restitution under Fam C § 6342. In re Marriage of J.Q. & T.B. (2014) 223 Cal.App.4th 687, 703 (Marriage of J.Q.).

In Marriage of J.Q, the Fourth District Court of Appeal found that a trial court may award spousal support to an applying party prior to concluding that domestic violence has occurred. In discussing the history of Article 2 (Orders Issuable After Notice and Hearing) of the DVPA, the Court in Marriage of J.Q specifically explained that Fam C § 6342 is different than Family C § 6341 (spousal support provisions of the DVPA). The Court found that “by their plain language, both sections 6342 and 6343 contemplate a trial court made a determination domestic violence occurred.” Id. 703.

Marriage of J.Q provides the following instructive analysis: “Section 6342 governs orders for restitution to the petitioner for loss of earnings and out-of-pocket expenses as a result of abuse inflicted by respondent (§ 6342, subd. (a)(1)), restitution to the respondent for out-of-pocket expenses incurred as a result of an ex parte order that a court concludes is supported by insufficient evidence at a noticed hearing (§ 6342, subd. (a)(2))… By their plain language, both sections 6342 and 6343 contemplate a trial court made a determination domestic violence occurred, and both sections are included in Article 2, the same article as section 6341. Had the Legislature meant to require a finding of domestic violence, i.e., abuse, as a condition precedent to a spousal support award under section 6341, subdivision (c), we conclude the Legislature would have included it in section 6341 like it did under sections 6342 and 6343.” Id.

If you are considering a domestic violence restraining order, you can contact me at Amanda@gordonfamilylaw.com for more information.

What is a finding of Family Code 3044?

A finding of Family Code 3044 significantly impacts custody.  If the Court makes a 3044 finding it means that the Court agrees that there was a finding of domestic violence within the past five years, and that if the person whom the finding was made against requests a change in custody they must show six narrowly defined and clearly measurable factors (e.g., completion of a batterer’s intervention program, parenting class, drug counseling, and/or probation/parole), and one broadly defined factor which requires substantial judicial discretion -- whether the perpetrator of domestic violence has demonstrated that giving sole or joint physical or legal custody of a child to the perpetrator is in the best interest of the child.  

The presumption may be rebutted only by a preponderance of the evidence. Fam C §3044(a). In determining whether the presumption has been overcome, the court must consider a number of specified factors addressing the child's best interest and whether the perpetrator has successfully completed any of a variety of programs, complied with any protective order if on probation or parole, and committed any further acts of domestic violence. See Fam C §3044(b)(1)–(7). The preference for frequent and continuing contact with both parents or with the noncustodial parent in Fam C §§3020(b) and 3040(a)(1) may not be used to rebut the presumption in whole or in part. Fam C §3044(b)(1)

The presumption does not apply if both parents are found to have perpetrated domestic violence.

If you are requesting a change in custody and have had a 3044 finding entered against you, we strongly recommend contacting a family lawyer for assistance and you can contact me at Amanda@gordonfamilylaw.com for more information. 

I have a Restraining Order hearing in front of a Commissioner, do I have to consent?

No.  In a recent appellate court case in California, the Court held that a restraining order is void if either party does not consent to a commissioner presiding over the hearing. California appellate courts have reversed and voided actions taken by commissioners where no stipulation appeared on the record.  

See Michaels v. Turk