DV Threshhold?

[SMarquez]

Asking about a sitch my niece was in.
Her husband came to the door, got irate because she was not going to allow him to see one of his daughters.
He started banging the door hard. He ended up kicking it and kinda caving in 1 panel.
She called local PD but managed to get him to leave and cancelled her request for assistance.
They are in the divorce process now. There are no custody arrangements or visitation rules yet but he has had pretty much access to the kids all he wanted.
She is the sole owner of the house.
By acting that violently to get a door open, had the local PD showed up would he have been arrested for his behavior? Would he be considered a threat to my niece?

[mixicus]

"Domestic" assault and battery are covered under CA PC241 & 243. Those charges are related to crimes against a person not an object. Depending on the exact circumstances possible vioaltions of PC602-Tresspass, PC594-Vandalism and PC422-Criminal Threats may apply.

[constable]

Simple answer no. Some places may have documented the incident to show prior history "escalation of violence". It depends if he has vested interest/pays for the residence (regarding charges for 594 602 etc).

Think of it this way. You are at home pissed off breaking your wife's property. California being a shared property state (between husband and wife) PD doesn't care as no criminal charges can be brought against you for breaking your own stuff...

Every situation is different... don't go spouting off what I say for gospel. As soon as you do a situation will arise that contradicts what I said.

[CBR_rider]

Originally Posted by constable

Think of it this way. You are at home pissed off breaking your wife's property. California being a shared property state (between husband and wife) PD doesn't care as no criminal charges can be brought against you for breaking your own stuff...

Not entirely true, you can be charged with vandalism if you destroy household property BECAUSE California considers it jointly owned (ie, you aren't just destroying your half of the value).

[rvicta]

My advice is to document the incident, including the date and time. That way, if she ever has to take him to court, her attorney (if it comes down to this) can bring this up in relation to her ex's behavior. Since she cancelled the call to the police, I don't know if there will be a record of that.

[SMarquez]

That's kinda what I thought re: all responses. She thinks she's sparing some kind of harm from her kids. I want her to protect herself in any way she can. Mostly a competent lawyer.
Thanks guys.

[Caddis]

Thanks for updating Constable on this CBR.
Based on his level of violence, an emergency protective order could have an option based on her level of fear. His volient behavior is going to be a problem and will work against him when it comes to child custody issues. She can and probably could get a restraining order easily based on this incident which could include loss of visitation until a hearing. No guns either for him.

[RDT72]

I wonder what agency this was, a call with those details would warrant an information report at minimum. I'm surprised she was able to call off the response. Usually calls like this require mandatory reports to be taken by the responding officer. She needs a police report of the incident, she can then use the report to substantiate a Restraining Order and even start custody orders for the kids. No custody order? He has as much right to the kids as she does. No protective order? He has as much right to the residence and the kids as she does.

[P5Ret]

A key points has been overlooked, there are no custody orders in place according to the op. He has had unrestricted access to his children in the past, what was different this time? With no orders in place can she just deny access to the kids on a whim? Now granted his behavior is unacceptable, but like the old saying goes there are two sides to every story and we have just one here.

[RickD427]

Originally Posted by P5Ret

A key points has been overlooked, there are no custody orders in place according to the op. He has had unrestricted access to his children in the past, what was different this time? With no orders in place can she just deny access to the kids on a whim? Now granted his behavior is unacceptable, but like the old saying goes there are two sides to every story and we have just one here.

Sir,

Thank you for making an excellent point. It's simply not fair to judge the OP's incident without having access to both sides of the story.

When situations like this develop, it usually is a good idea for both combatants to seek the representation of counsel. Communication is easier that way, and counsel also has the ability to better temper the expectations of the combatants.

Previous posters have cited a number of laws that may, or may not, have been violated. It's always important to remember the elements of those laws:

As to visitation - Absent a court order, each parent has an equal right of access to the child.

Criminal Threats (422 PC) - The elements require both the making of the threat, and the creation of a "sustained fear" on the part of the victim that the threat will be carried out. Saying "I'm going to kill you" is not a violation. Saying "I'm going to kill you" and the victim being concerned for their safety is not a violation. Saying "I'm going to kill you" and the victim believes they are going to die, there is a violation. The words "fear" and "sustained" as used in the code have meaning.

Vandalism (594 PC) - Destroying personal property alone is not vandalism. To be an act of vandalism, the destruction must be done "maliciously." If the damage is done as a consequence of the combatants efforts to reach their child, and the "malicious" element cannot be shown, then there is no act of vandalism.

Child Concealment (278.5) - If a parent conceals a child from the other parent, or person having a right of custody, then a crime is committed (with some very narrow exceptions where there is immediate danger to the child).

Private Person's Arrest (142 PC) - A private person's arrest is a useful tool where LEO's lack the authority to make an arrest. This is typically where the offense is a misdemeanor, did not occur in their presence, and when no special provision of law otherwise permits the arrest. Up until 2003, the law required officers to accept custody of private persons arrests. Many still believe this to be case and seek to use this tool to force officers to make arrests contrary to their judgement. That no longer works. The Ninth Circuit published a decision that hold officers responsible for the judgement used in accepting custody. PC 142 was amended to allow officers discretion to decline private persons arrests.

[mixicus]

RDT

"I wonder what agency this was, a call with those details would warrant an information report at minimum. I'm surprised she was able to call off the response. Usually calls like this require mandatory reports to be taken by the responding officer."

A dept may have a policy but I am unaware of any PC or other code that requires a report for this type of incident. Can you please provide? As for the call off, it depends what she was telling dispatch."My ex is trying to kick in my door. Never mind he's gone." v. "My ex is at my door. I want him to go away. Never mind he's gone." may result in 2 different responses.

"She needs a police report of the incident, she can then use the report to substantiate a Restraining Order and even start custody orders for the kids."

You do not need a police report to get an RO nor do you need one for custody orders. You can document on your own. Incidents such as not following the verbal agrement between two parties or 'bad parenting" would be taken into consideration for an RO but neither are a crime, so no police report. One needs to articulate the need of an RO or what is in the best interest of the children in custody issues to a majistrate.

"No protective order? He has as much right to the residence ... as she does."

There is no statement in the post that he has standing at the residence in question. Just because he knows or is related to persons in the house does not mean he has a right to be in the residence. It could be her own place or parents/friends residencs where he never lived.

[ncortez11]

Well, you forget about PPA (Private Persons Arrest). Vandalism would definitely apply here or 422 (a) PC (Criminal Threats). Or, a documented incident.

[oddjob]

OP,

Have your niece make a report (even if its an on-line report). Documentation goes a long ways during the family court process. Document/record and keep all calls, texts, e-mails & etc. Make sure she calls the local law enforcement agency every time he gets violent. Tell her to never cancel law enforcement response. Have them respond and she can make a report and show law enforcement any damage.

If he used to live there she may have some issues as to whether he violated the law when he kicked in a panel. Make sure she changes the locks. Have her get a temporary restraining order (TRO). Remember the TRO should also cover the schools & work place as well as the residence. I would really recommend she hire an attorney. If she cannot afford one maybe the local Victim Witness or Women Escaping A Violent Environment (WEAVE) can assist her. Another important detail is to make sure the neighbors know about the TRO. She may not always be home when/if he decides to make an appearance. I know it can be embarrassing for her, but I've seen it work.

The other posters' questions & statements as to custody, standing & etc are legitimate issues that need to be addressed.

Good luck to you and your niece.