Does every marriage in California involve domestic violence?
The question sounds absurd on its face as the statistics seem to make clear. Physical violence between intimate partners, though far too common, remains the experience of a minority of people. According to the CDC’s national survey, over one in five women (22.3%) and nearly one in seven men (14.0%) have experienced physical violence at the hands of an intimate partner in their lifetime. Thus marriage, whatever its difficulties, does not usually involve violence as most people understand the word.
However most married people, men and women alike, have experienced something else. Nearly everyone who has been married can recall a moment when a spouse’s words or conduct destroyed their peace of mind so thoroughly that their entire day was ruined as a result. A remark in an argument that landed too hard, repeatedly doing something annoying to your spouse, a confidence repeated to a sister or a friend. Peace of mind is destroyed in every marriage even the happiest ones and the destruction runs in both directions. That’s not abuse or “domestic violence”, right?
What makes the question serious is a change in the law. Since 2009, California has defined “domestic violence” between spouses and other intimate partners to include not only physical violence but conduct that “destroys the mental or emotional calm” of the other person, a definition announced first by a California Court of Appeal and, since 2021, written into the statute itself. It’s clear that physical violence directly affects only a minority of marriages but “destroyed mental and emotional calm” touches virtually all of them. If the law’s definition of domestic violence has migrated from the first category toward the second, then the question of whether every California marriage involves domestic violence, as the law defines it, deserves a real answer rather than a laugh. Supplying one requires understanding how the law on domestic violence came to exist, what it was built to fix, and what it now permits.
The Law Stayed Out Of The Home For Much Of American History
For most of American history, the problem with domestic violence law was quite narrow and in essence what happened behind the closed doors of a family’s home remained a private matter and not the concern of the government. Under the English common law that the American states inherited, a husband held a recognized authority to physically “chastise” his wife. While nineteenth-century American courts formally rejected that doctrine, many replaced it with something nearly as protective of the abuser, a policy of judicial non-interference in what happened between spouses. Courts of that era wrote openly that it was better to stay out of physical domestic violence unless permanent injury occurred, which essentially created a privacy exemption for spousal abuse (State v. Rhodes, N.C. 1868). A spouse beaten by their spouse might find, well into the twentieth century, that police would not arrest, prosecutors would not charge, judges regarded the matter as private, and juries were not inclined to convict.
The modern framework of domestic violence throughout the United States, including in California, is a rejection of that history. The battered women’s movement of the 1970s forced the issue into public view. California enacted its Domestic Violence Prevention Act, the civil framework this article is about, and later recodified it in the California Family Code, creating a fast, accessible court process by which a person facing domestic violence could obtain a domestic violence restraining order (DVRO) without waiting for a criminal prosecution. The resulting family DVRO appellate history and recent California statutory enactments have more precisely defined what “domestic violence” means in family court. Additionally, police practices changed, mandatory arrest policies arrived, and the public understanding of what happens inside violent homes was transformed.
The point of this history is that every expansion described in this article happened for a reason. The old regime, in which the law averted its eyes to domestic quarrels, has been replaced with a system that interprets all physical domestic violence as a public crime and something for which partners can seek immediate protection from in the family court.
The Case That Redefined Domestic Violence
The modern definition of what “domestic violence” is under California family law traces back to a 2009 case from Silicon Valley, and to a divorce in which no one had raised a hand against anyone.
The husband had gotten into his former wife’s email account. He read her confidential messages, disclosed what he found to others, and used some of it against her in their custody dispute. When she asked a judge for a domestic violence restraining order, the trial court turned her away, reasoning that whatever this conduct was, it was not domestic violence. Reading someone’s email is an intrusion, the thinking went, and perhaps a civil tort, but the domestic violence restraining order law was written for people in physical danger.
The California Court of Appeal disagreed. In a decision called In re Marriage of Nadkarni, the court held that California’s domestic violence statutes include conduct that “destroys the mental or emotional calm” of the other person, whether or not anyone was physically touched, threatened, or even spoken to (In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483.) The wife’s shock, embarrassment, and fear at finding her private correspondence in her ex-husband’s hands could, the court said, be “domestic violence” within the meaning of the law.
In the years since, that sentence has grown into a body of law with remarkable reach in the realm of California domestic violence restraining order law. It has produced restraining orders against a man who would not stop texting a woman who had left him; against a husband who downloaded and shared his wife’s text messages; against a man who told his partner’s family and coworkers the truth about her infidelity; and against a boyfriend who monitored his girlfriend’s movements and conversations. Then in 2021, the California Legislature took the courts’ definition and wrote it directly into the statute while adding a new legal concept, “coercive control”, alongside it. The sections that follow trace that growth through the statutes and the published cases.
What California Family Law Says About Domestic Violence
California’s civil domestic violence restraining order law works through a chain of definitions. The California Family Code generally defines domestic violence as abuse committed against people in certain relationships with the accused, a spouse or former spouse, a cohabitant, someone in a dating relationship, a co-parent, a close relative. It then defines abuse in four categories. The first three categories are what anyone would expect, intentionally or recklessly causing or attempting bodily injury; sexual assault; and placing a person in reasonable fear of imminent serious bodily injury. However, the fourth category is different in kind. Abuse also includes any behavior that a court could enjoin under another provision, California Family Code section 6320, and the statute adds that abuse “is not limited to the actual infliction of physical injury or assault.” Section 6320 supplies the list of what constitutes domestic violence under California Family Law. It permits a court to enjoin attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, destroying personal property, and contacting the other party, and then it closes with five words that have become the most consequential phrase in California domestic violence restraining order law, “disturbing the peace of the other party.”
For years the phrase sat undefined, a vague remainder at the end of a list of violent acts. Nadkarni defined it, and in 2021 the Legislature adopted the definition as statute. Disturbing the peace of the other party now means, in the words of California Family Law section 6320(c), conduct that, “based on the totality of the circumstances, destroys the mental or emotional calm of the other party.” The statute specifies that the conduct may be direct or indirect, may be accomplished through third parties, and may occur by any method, expressly including telephone, online accounts, text messages, and internet-connected devices.
Destroying a partner’s mental or emotional calm is not the definition of all domestic violence in California. It is the definition of one enumerated form of abuse, “disturbing the peace”. However, that distinction simply raises more questions as to what precisely “disturbing the peace” actually means in practice.
The 2021 legislation additionally named a pattern the domestic violence field had described for some time and gave it legal force. “Coercive control”, the statute now provides, is a pattern of behavior that in purpose or effect unreasonably interferes with a person’s free will and personal liberty, and it is itself a form of disturbing the peace. The statute did offer some examples of coercive control. Isolating a partner from friends, relatives, or other support; depriving them of basic necessities; controlling, regulating, or monitoring their movements, communications, daily behavior, finances, economic resources, or access to services; or compelling conduct by force, threat, or intimidation.
The coercive control amendment answered what the California legislature saw as a genuine gap in protection. They believed that the most dangerous kind of domestic violence was often not necessarily an isolated physical assault but a sustained campaign of domination or “coercive control” which it believed the law should protect against.
What The California Courts Have Said About Domestic Violence
The published California appellate decisions have given us a better view of what constitutes “domestic violence” under California’s domestic violence restraining order law.
In Burquet v. Brumbaugh, decided in 2014, a man could not accept that a dating relationship had ended. He continued contacting the woman by phone, email, and text after she asked him to stop, and he arrived once at her home, unannounced and unwanted, leaving only when she threatened to call the police. He never threatened her and never touched her. The Court of Appeal affirmed a restraining order against him. His course of conduct had disturbed her peace. (Burquet v. Brumbaugh (2014) 223 Cal.App.4th 1140.)
In In re Marriage of Evilsizor & Sweeney, decided in 2015, a husband downloaded tens of thousands of his wife’s text messages and disclosed private information from them. The court affirmed a restraining order on the same reasoning. (In re Marriage of Evilsizor & Sweeney (2015) 237 Cal.App.4th 1416.)
Altafulla v. Ervin pushes the principle of disturbing one’s peace even further. A man obtained a surveillance report documenting his partner’s infidelity and distributed it, including to her coworkers and family members. The information was substantially true, and its truth did not save him. Disseminating it in a manner calculated to cause severe emotional distress disturbed her peace, and the restraining order was affirmed. (Altafulla v. Ervin (2015) 238 Cal.App.4th 483.) The implication deserves a moment of attention. In California, truthfully telling third parties what your partner did can be domestic violence.
In the trial courts, where the doctrine meets daily practice and where most trial cases are not appealed, we have seen judges routinely grant restraining orders on purely verbal non-threatening behavior that are said to disturb one’s peace.
What The Courts Have Said Does Not Count As Domestic Violence
There are fewer published California appellate cases which have said what actions do not disturb one’s peace than cases that define what is domestic violence. However, in S.M. v. E.P., a 2010 decision, ‘badgering’ in the course of an argument was held insufficient to constitute domestic violence. In Curcio v. Pels, decided in 2020, a woman posted an accusation about her former girlfriend on her own private Facebook page, and the Court of Appeal reversed the resulting restraining order, writing pointedly that the DVPA was not enacted to address every dispute between former couples or to serve as an alternative forum for their grievances. (Curcio v. Pels. (2020) 47 Cal.App.5). In 2021, in In re Marriage of L.R. & K.A., a court of appeal reversed a restraining order by invoking the Legislature’s own stated intention that the new statute carry “guardrails” confining it to clearly abusive conduct, and holding that the behavior before it fell short of the line the earlier cases had drawn.
These decisions matter, and they refute the strongest version of the claim that anything that an individual claims subjectively “disturbed their peace” is sufficient. However, there exists little clarity and certainly no bright line rule for what conduct is simply abrasive or
objectionable vs what behavior “destroys the mental or emotional calm” of another individual. No case and no statute supplies a test that a spouse could consult in advance to learn which side of the line a bad marriage’s worst month falls on. The governing standard is the totality of the circumstances, which is a lawyer’s way of saying that the answer depends on the judge, the facts, and the day.
What Qualifies As “Disturbing One’s Peace” Is Not Academic
None of this would matter much if a domestic violence restraining order (DVRO) were a formality. It is among the most consequential orders a California court can issue against a person in family court.
A DVRO triggers a statutory presumption, under Family Code section 3044, that awarding custody of children to the restrained parent would be detrimental to the children. The presumption is rebuttable, but courts of appeal have enforced it strictly, and in practice the restraining order fight and the custody fight are frequently the same fight. The order prohibits the restrained person from owning or possessing firearms and requires surrender of any they have. For non-citizens, findings and violations in this area can carry immigration consequences that outlast the order itself. The order surfaces in background checks, and for licensed professionals this can have serious consequences.
Against those stakes stands the burden of proof and many people are surprised by this. A DVRO issues on a preponderance of the evidence, the civil standard, meaning that the judge need only find the allegations more likely true than not. The same conduct, charged criminally, would require proof beyond a reasonable doubt. The most consequential order in family law issues on the standard used for a fender-bender, and in a contested divorce, where a restraining order can determine who keeps the house and who gets the children, the combination of a broad definition, a low burden, and enormous stakes creates exactly the incentive a strategist would predict. In our article on high-conflict divorce, we describe how restraining orders function in those cases as opening moves, sometimes sincerely, sometimes tactically, and why the two possibilities have to be litigated with equal seriousness.
Does Every Marriage In California Involve Domestic Violence: The Answer
Does every marriage in California involve domestic violence? As normal people actually live their marriages and how they use those terms in normal conversation, the common sense answer no. Conflict is not seen as abuse or domestic violence.
But the way that the California statutes on domestic violence restraining orders are written, the answer is less reassuring. The legal definition of domestic violence now extends to conduct that destroys a spouse’s mental or emotional calm, assessed under the totality of the circumstances, provable by a preponderance of the evidence. Measured against that language, a great deal of what happens in ordinary troubled marriages, the cruel remark repeated to friends, the snooped phone, the surveillance born of jealousy, the campaign of silence, could be framed as abuse by a motivated litigant, and some of it, in front of some judges, would succeed.
The law in this area was built to correct a long and genuine problem, and it does protect real abuse victims every day. It is also broad, discretionary, and consequential beyond what almost any layperson suspects, and it now reaches conduct that earlier generations of lawyers would never have called domestic violence.
This article provides general information about California law and is not legal advice. Every case turns on its own facts.