Although a minor child can testify in chambers with a judge when a domestic violence restraining order is requested, the court is required to relay the information the child provided to the parents of the child.
In Cardona v. Soto, the court ruled on whether a minor child’s testimony, provided to the judge solely and without the presence of the parents, must be shared with the parents in a domestic violence restraining order (DVRO) case.
Case Background
In this case, the parents of a minor child were never married and they shared custody of the minor child. The minor child was visiting her father when he physically attacked his then current wife while his daughter was present and slapped the minor child in the face. The mother of the minor child requested a domestic violence restraining order (DVRO) under the Domestic Violence Prevention Act (Family Code §6200 et seq.).
Trial Court’s Decision
During the court proceedings, the minor child testified in the judge’s chambers. She told the judge what she experienced and that her dad had forced her to carry his gun. The child’s testimony was not recorded. In addition, the judge did not relay to the parents what the daughter said in chambers. The court issued a restraining order for one year. However once the restraining order expired, the father filed an appeal.
Appellate Court’s Ruling
The appellate court addressed several issues in this case. First, the court had to determine whether the father could appeal the restraining order after its expiration. The appellate court ruled
that, given the potential future consequences of the decision, the case was valid for appeal.
A key point in the appellate court’s decision was the application of Family Code section 3044. Under this provision, a presumption of domestic violence arises once a DVRO is granted. This presumption prevents the abusive parent from having sole or joint custody of the minor child for five years, even after the DVRO expires. Consequently, the father’s visitation rights were
affected due to the restraining order.
Due Process Concerns and Reversal of Restraining Order
The father argued that when the trial court interviewed his daughter and conducted an unreported, in-chambers interview of his daughter, his due process rights were violated. The
appellate court agreed stating that the father did not have a meaningful hearing where he was afforded an opportunity to examine and cross examine witnesses. In this situation, the father was unable to offer testimony in his defense. The appellate court reversed his restraining order.
Key Takeaways
• Minor Child’s Testimony: A minor child’s testimony may be taken in chambers but must be communicated to both parents.
• Due Process: Parents must be given the opportunity to cross-examine witnesses, including a child’s testimony, to ensure a fair trial.
• Domestic Violence Presumption: A DVRO triggers Family Code §3044, which affects custody and visitation rights for up to five years, regardless of the expiration of the restraining order.
If you’re dealing with a similar family law issue or need assistance with a restraining order in Orange County, consider reaching out to Treviño Law. Our office in Laguna Hills, easily accessible from the 405 and 5 freeways, is here to help with your legal needs.
Disclaimer: This article provides general information and does not establish an attorney-client relationship. For specific legal advice, please contact Treviño Law, Inc.