Parental restraints: California’s domestic violence law can leave nonviolent parents facing protective orders
Some legal experts say law’s definition of domestic violence is necessarily vague to catch red flags like stalking and harassment
The day before Christmas 2009, Loren Tomschin arrived at the Chico home of his ex-wife and their daughter. He later explained to the Butte County family court that he hoped to leave Christmas presents for his daughter, who he had not seen since 2006, when she was three. He also says he wished to arrange to routinely see the child. Tomschin and his ex-wife had been separated for several years.
The ex-wife, whose attorney asked SN&R not to name, described a different scenario. She reported to the court six days later in a request for a restraining order that Tomschin had threatened her boyfriend while demanding to see his daughter. Tomschin submitted a response in February 2010, telling the court his visit “was non violent and non threatening in nature,” and that his ex-wife’s claims were “absolutely fabricated.”
The matter was one of his word against hers, and the court sided with her.
Three years earlier, in 2006, his ex-wife had claimed Tomschin sexually molested their daughter. After interviewing the girl, Butte County Children’s Services and the Chico Police Department issued a finding that was “inconclusive.” Tomschin swore he had done nothing and protested the decision, but Marion Mohl of Child Protective Services and Cesar Sandoval of CPD told him that while there was no way to prove that any kind of molestation happened, there was also no way to know for certain that it hadn’t.
With that as background, since state law names harassment and “disturbing the peace” of another person as types of domestic abuse, the Butte County family court issued Tomschin a temporary restraining order following his Christmas visit to the house where his daughter lived. The restraining order was later extended to five years. In 2012, the court granted his ex’s request to strip Tomschin of all custody rights—a request based on the claim that he had abandoned his family. Tomschin, who is fighting the claim in court, counters that he has been strategically exiled from his daughter’s life.
Two Sacramento men told similar stories but asked not to be identified for fear of affecting their trials. One received a three-year domestic violence restraining order because he sent emails to his ex-wife with, he said to SN&R, the intention of angering her. The other man was issued a five-year restraining order in June, records show, after he made several phone calls to his ex-wife and visited her home, according to the woman’s request for a protective order.
“[He] showed up at my residence, standing on my property, waving at me, and spoke to me so that I knew he is [sic] outside,” she wrote. She said his actions caused her “emotional and psychological” injuries. There were not allegations of violence in the encounter.
Signed into law in 1994, the Domestic Violence Prevention Act was designed to enhance protections for victims. However, the language within the law—especially its definition of domestic violence—is broadly written, and this, some attorneys and unhappy court litigants say, opens the door for unwarranted restraining orders that can have lasting consequences.
UC Berkeley School of Law lecturer Nancy Lemon said the language in the Domestic Violence Prevention Act “should be vague so that a diversity of behavior can qualify as domestic violence, but it’s then up to a judge to make sure the language is being applied in a fair way.”
It isn’t clear this process is working very well. For one thing, domestic violence restraining orders tend to be requested in family courts, a branch of the court system often burdened by emotionally-charged divorce and custody cases and muddied by conflicting testimonies.
Eric Nelson, a former police officer and a volunteer criminologist with UC Davis’ Department of Public Health Sciences, says the law’s definition of domestic violence is so vague that it is essentially meaningless.
“There isn’t an adult in California who couldn’t be given a domestic violence restraining order, and if you haven’t gotten one, the only reason is because your partner hasn’t taken you to the family court and said, ’This guy was mean to me,’” Nelson said.
As a result of this language, he added, domestic violence restraining orders frequently get used “like a bludgeon.”
Nelson is not, however, an unbiased expert—he sees himself as a victim of this system. He lost a domestic violence restraining order appeal against his ex-wife in July.
According to court documents, he had run a sexually explicit ad on Craiglist, pretending to be his then-wife, headlined with a lurid subject-line and describing her in an offensive, misogynistic way. He then collected the responses elicited by the ad—again explicit—and sent the whole package to her. He admitted he did these things to upset her.
He also created at least six videotapes of her, using a body-cam that he had obtained while he was a police officer, and posted them on a private YouTube channel. In emails admitted to the court, he threatened to share them.
Family code 6320 lists “harassing,” “making annoying telephone calls,” and “contacting, either directly or indirectly, by mail” as forms of domestic violence.Note: An earlier version of this article did not reveal that Nelson was issued a Domestic Violence Restraining Order.
“It’s written so that a phone call, or calling someone a name, or disturbing the peace can be considered domestic violence,” said Shannon Mason, a Sacramento family law attorney.
San Ramon resident Joseph Sweeney filed a lawsuit in May in an Oakland court to challenge the Domestic Violence Prevention Act.
“[V]irtually any speech or action can now be considered ’abuse’ so long as a family law judge says so,” Sweeney argues in his suit.
Sweeney’s actions involved accessing his then-wife’s cellphone and using software to download all of its contents, including tens of thousands of text messages and the “notes” section that she used as a diary. He then shared some of that information with her attorney without her consent, and with officials evaluating a custody case between Sweeney and his now-ex-wife.
Later, he went to his ex-in-law’s home and disclosed private and sensitive information, which he had gotten by other means, to his ex’s parents.
Sweeney then threatened to reveal publicly the contents of more text messages, his ex says. She sought the order to enjoin him from further disseminating her text messages and emails, and to bar him from accessing or interfering with her internet-service provider or social-media accounts—he also had taken over her Facebook page and changed the password, she says.
The court granted her a five-year SVRO. Sweeney appealed and lost.According to a court record of the case, Sweeney’s ex-wife claimed his actions caused her “extreme embarrassment, fear, and intimidation.”
Sweeney maintains that the conduct was not domestic violence.Note: An earlier version of this article misrepresented the reasons the court gave for issuing its restraining order.The law does protect people—though only if judges correctly draw the line between routine relationship quarreling and actual abuse, some attorneys say.
“It’s a hard balancing act,” Mason said.
Paul Durenberger is one of the public officials charged with striking that balance.
An assistant chief district attorney in Sacramento County who works closely with criminal domestic violence cases, Durenberger says it’s critical that courts take seriously any allegations of behavior that could be construed as threatening. That, he says, is because nonviolent types of abuse frequently escalate to violent interactions—including homicide.
Three summertime convictions in Sacramento Superior Court, stemming from unhappy relationships and custody arrangements between estranged partners, illustrate Durenberger’s argument.
In May, a jury convicted Justin Jesus of the 2015 stabbing death of his wife, Elizabeth Masters, shortly after she left him and returned to her family’s home in Folsom. That same month, Marcos Adams was convicted of attempted voluntary manslaughter for shooting his wife during a physical scuffle in 2015. Adams was arrested more than a year after the assault, during a subsequent domestic violence incident with another victim.
Also in May, Charles Ewers pleaded guilty to the attempted murder of his children, whom he tried to suffocate in his garage with the car engine running. Sacramento County sheriff’s deputies discovered the attempted murder-suicide in progress after the children’s mother reported that her estranged husband had kept the kids past a prearranged drop-off time.
In Sacramento, the No. 1 instigating event for homicide is fraudulent sale or theft of marijuana, according to Durenberger. “And the second is domestic violence,” he said.
Nationally, four out of five mass murders in the United States are triggered by domestic violence, he says, while about one fifth of all officers killed in the line of duty were responding to domestic violence calls.
At WEAVE, a Sacramento crisis intervention service for abuse victims, Julie Bornhoeft says repeated phone calls to estranged partners and attempts to make contact and surprise house visits can amount to stalking and, in many cases, be precursors to violent acts.
Not acting on such signals can bring terrible consequences. In a 2013 annual report, the district attorney’s domestic violence review team described at least one case in which the family court “fail[ed] to inquire into the lethality factors and history of abuse” and overlooked signs that children may have been threatened. “This contributed to a deadly result on one case we reviewed this year,” read the report, to which Durenberger contributed.
Even in the absence of any physical violence, “if you look at the big picture, the victim might actually be in danger,” said UC Berkeley’s Lemon, who is also the legal director at the Family Violence Appellate Project. “Coercive control by one partner can be devastating and life-changing. Even if there isn’t any violent abuse, the one person’s behavior can make the other feel unsafe and isolated from the world around them.”
Bay Area family law attorney Daniel Cantrell, who represents Sweeney’s ex-wife, points out that temporary restraining orders serve a critical purpose. At the first allegation of abusive or coercive behavior—even if evidence is thin—the judge should issue one, he says.
“It’s just a few weeks, and that allows time to determine if the person is actually a threat,” Cantrell said. Subsequently, he explained, a judge may issue a long-term restraining order if the accused abuser is confirmed to be a genuine danger.
But longer-term orders come with serious consequences for the restrained person, says Chico family law attorney Fritzgerald Javellana, who has represented Tomschin’s ex-wife. They remain permanently on a person’s record and can affect future employment opportunities.
He, too, thinks just about any request for a restraining order must be initially taken seriously and answered with a temporary order. However, he says, requests for restraining orders are routinely based on false allegations.
That’s approximately what Tomschin says happened to him. His ex-wife has requested restraining orders against him five times. Only one—following the 2009 gift drop—resulted in a long-term restraining order.
Tomschin says he regularly travels to Sacramento to demonstrate with other members of the U.S. Brotherhood of Fathers, a group of men who say they have been impacted by false allegations. Tomschin says he is preparing to take his ex-wife and her husband to court, and he hopes, eventually, to establish a relationship with his daughter.
“I haven’t seen my daughter for 12 years,” he said. “It’s been a nightmare.”
Tomschin and his ex-wife last met in Butte Superior Court on August 23. The case is confidential, but Jessica Freitas, Tomschin’s assistant, says a judge is considering Tomschin’s ex-wife’s claim that he abandoned his daughter, and her petition to strip Tomschin of his rights as a father. The judge, Freitas said, is expected to make a ruling within months.This article was edited at 6:50pm on November 14 as indicated above.