Erin C. Smith

Family Violence Appellate Project -- Oakland

As the executive director of the Family Violence Appellate Project, Smith leads a public interest law firm of ten lawyers in California and Washington who see their mission as helping survivors of domestic violence and abuse obtain the safety and the justice they deserve.

Getting justice often requires "harnessing the power of the legal system by reversing the trial court decisions that are dangerous for survivors and their children," Smith said. "Our vision is ultimately to break the cycle of violence so that everyone can live in a safe and healthy home, and we can become a nation free of domestic abuse."

One too common variety of trial court decision in need of reversal concerns the presumption set out in Family Code Sec. 3044 against granting custody to a parent who has committed domestic violence, Smith said.

"Unfortunately, we see trial courts just continually not get this one right."

Her organization achieved "a really strong published opinion" in August, reinforcing the statute's command. The appellate court first denied the group's writ petition. The project persuaded the California Supreme Court to return the case to the appellate court and then to publish the decision. Noble v. Superior Court, 71 Cal. App.5th 567 (Cal. App. 5th Dist., Aug. 19, 2021).

An appellate win in September touched on the same issue. The Family Violence Appellate Project's client had been subjected to significant abuse, including being raped, strangled and threatened with a gun. But the trial court granted joint custody and issued a mutual restraining order against both parents. The appellate court largely reversed. K.L. v. R.H., 70 Cal. App. 5th 965 (Cal. App. 4th Dist., Sept. 30, 2021).

Imposing a mutual restraining order may seem reasonable at first blush, Smith said. But to do so requires a finding that each parent was a "primary aggressor," which then triggers the no-custody provision. True mutual abuse is very rare,and a mutual restraining order is "a legal remedy that should be extremely rare as well, but it's not," she said. "It's used fairly often, and then it has these ramifications on custody."

Of course, many trial courts do apply the violence anti-custody presumption correctly, Smith said. "It's like steering an aircraft carrier.... It just takes time."

Another common trouble spot for the trial courts is what abuse can be considered when weighing whether to impose a restraining order. "The statute requires the court to consider the totality of the circumstances," Smith said, whether abuse occurred before or after a request for a domestic violence restraining order is filed.

The project won an appellate victory last summer making just that point. In re Marriage of F.M. v. M.M., 65 Cal. App. 5th 106 (Cal. App. 1st Dist., June 3, 2021).

A growing development in the field is courts imposing protection against nonphysical abuse, including even what one court described as "spiteful litigation tactics." Ashby v. Ashby, 68 Cal. App. 5th 491 (Cal. App. 4th Dist., Aug. 5, 2021). "We were thrilled to get that opinion," Smith said.

Her organization almost always pairs with attorneys volunteering from law firms on its cases, and Smith encouraged interested lawyers to contact the project.

- Don Debenedictis