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J.J. v. B.A., No 11-FM-1309 (D.C. Ct. App. April 18, 2013)

The ever-expanding reach of the Domestic Violence Unit made a striking, but subtle, appearance in a recent opinion from the D.C. Court of Appeals – J.J. v. B.A., No 11-FM-1309 (D.C. Ct. App. April 18, 2013).

The case’s main holding is interesting in and of itself – the parties had entered into a Consent Custody Order in Montgomery County, Maryland, as part of divorce proceedings there.  One paragraph of that Consent Custody Order read, “[Mr. A] shall endeavor to dismiss any restraining order case pending in the District of Columbia.”  Moreover, the parties agreed on the record in Montgomery County that “the father will … do everything he can to dismiss…[t]he D.C. restraining order.”  See J.J. v. B.A. at p. 2-3.  NB: it is not difficult for a petitioner in D.C. to dismiss a petition for a civil protection order when he “endeavors” to do so and “does everything he can” to do so.  The Court of Appeals noted, “Under the law of this jurisdiction, Mr. A. had the unilateral right to dismiss his CPO petition, without leave of the Superior Court.”  Id. at p. 15-16.

Notwithstanding the Consent Custody Order, Mr. A. went forward, two days after entering the Consent Custody Order, with a contested hearing for a Civil Protection Order in the District of Columbia Superior Court Domestic Violence Unit.  Judge Turner granted the CPO, finding that if Mr. A.’s pursuit of the CPO was a violation of the Maryland Consent Order it was a Maryland problem, not a D.C. problem.  See Id. at p. 6.   The Court of Appeals disagreed.

The Court of Appeals found that the Full Faith and Credit Clause of the United States Constitution, and general notions of comity, required the D.C. Court to hold Mr. A. to his obligations under the Maryland Consent Custody Order.  The Court of Appeals was careful to limit its holding to the specific facts of this case.  Id. at p. 10. 

Leaving aside the main holding of the case, the Court of Appeals noted that in spite of accusations of threats, stalking, and harassment, the trial court granted the Civil Protection Order based solely on its finding that Ms. J. accessed Mr. A.’s email account without his permission.[1]  Id. at p. 3-4.   Indeed, under the statutory scheme for Civil Protection Orders in the District of Columbia, any act that is a “crime” (and committed against a person with whom the respondent has a qualifying relationship) is, standing alone, a sufficient basis for the victim of that crime to obtain a Civil Protection Order.  And checking someone’s email without that person’s permission is a crime.  In my opinion, Judge Turner made a correct finding based on the D.C. Code.[2] 

Of note is that the evidence showed that each party had checked the other party’s email without that party’s consent.  However, only Mr. A. filed a Petition for a Civil Protection Order, so only Ms. J.’s actions were before the court.  

This case stands as a reminder of how broad the District of Columbia domestic violence laws are.  Laws this broad can catch both abusers and non-abusers – and it is not without consequence.  When a court makes a finding that an intrafamily offense has occurred (which now includes checking someone’s email without permission) there is a presumption against joint custody.  Moreover, there are other related collateral effects such as the federal prohibition on the possession of firearms by the respondent while a CPO is in effect, job-related stigma, and social stigma attached to having a Civil Protection Order entered against someone.

My final question is whether having domestic violence laws this broad is a good use of judicial resources.  The domestic violence calendar is crowded – often resulting in delays of cases where victims truly need protection for their abusers.  Do we really want to be crowding these courts with mutually-snooping spouses?

[1] The trial court, finding Ms. J.’s admission of checking Mr. A’s email without his permission sufficient for the entry of the Civil Protection Order, decided it did not need to address the other allegations.

[2] The Court of Appeals did not make a specific finding about whether or not Judge Turner was correct in finding an intra-family offense. 



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