OJ Simpson’s domestic violence history left an indelible mark on family law proceedings

I remember where I was in 1963 when Kennedy was shot and I remember where I was in 1994 when I watched the Bronco "chase." As I sit here today, I remember how the revelation of the history of domestic violence perpetrated by OJ Simpson against Nicole Simpson, along with the eventual Court award of custody of the parties' two children, Sydney and Justin, to OJ Simpson changed the practice of family law.

As the story unfolded in the press, there was an immediate and noticeable impact during court appearances. The number of requests for restraining orders appeared to increase significantly. The court system seemed unprepared to handle the increase. Judges were frequently interrupting proceedings to answer requests for Emergency Protective Orders called in by the police. The judges often commented on the connection between the Simpson case and the rise in applications.

When OJ Simpson was charged with the murder of his children's mother and jailed pending trial, the Simpsons' two young children were placed with their maternal grandparents pursuant to a guardianship that was created with Simpson's consent. When Simpson was acquitted after 17 months of incarceration, he requested a termination of the guardianship. In December 1996, the trial court in Orange County terminated the guardianship, finding that the guardians did not meet their burden to show by clear and convincing evidence that it would be detrimental to return the children to their natural parent. In making its ruling, the trial court refused to consider evidence of the "murder issue" or evidence from the ongoing civil case against Simpson. The trial court also refused to admit entries from Nicole Simpson's diaries that allegedly related to domestic violence issues and concluded that the threats referred to threats of financial harm rather than physical harm. The guardianship was terminated, and the children were returned to the custody of their father. The guardians appealed.

On Nov. 10, 1998, the Court of Appeals reversed and remanded the case to the trial court, finding that the trial court committed many errors. As to the omission of the evidence of domestic violence, the court found that the threats set forth in Nicole's diary should have been admitted as they were sufficiently ambiguous as to whether they referred to financial violence or physical violence and were a clear exception to the hearsay rule. The appellate court emphasized the availability to the trial court of Section 1370 of the evidence code, providing that threats of physical abuse would not be excluded as hearsay if the statement "was made at or near the time of the infliction or threat of physical injury." The children remained with their father while various proceedings were pending. Throughout this period, the children were unwavering in their desire to remain with their father. In 2000, Simpson and the children's grandmother agreed that the children would live with Simpson in Florida and spend time during the summers and holidays in California with their maternal family.

As the Court stated: "Indeed, it is about as clear as is imaginable, because section 1370 of the Evidence Code was enacted specifically in response to the fact that these very diaries could not come into evidence in the criminal trial! (See arguments in support of Assem. Bill No. 2068 (1995-1996 Reg. Sess.) for hearings of Aug. 14, 1996 ["The most notable recent example of this deficiency in California law is the exclusion of hearsay statements made by Nichole [sic] Brown to her diary and to others, describing threats and physical abuses by Orenthal Simpson"] and Aug. 20, 1996 ["Nicole Brown Simpson made statements in her diaries and to friends in order to tell the world who her possible future murderer might be. She probably did not know that an archaic legal rule would keep a jury from hearing this relevant evidence."].) Under the circumstances, it is plain [***46] that the diaries should have been admitted as evidence, and the parties then allowed to argue as to what weight and interpretation to put on them. And, of course, given the diaries' direct relevance to the issues of domestic violence and Simpson's ability to control his temper, it was prejudicial error for the court not to allow them in."1 Guardianship of Simpson, 67 Cal. App. 4th 914, 938 Section 1370 of the Evidence Code was added immediately as urgency legislation.

The legislative reaction to the Simpson story continued.

On Feb. 24, 1999, Sheila Kuehl and Richard Rainey introduced AB 840. The bill created a presumption against an award of sole or joint physical or legal custody to a person who has perpetrated domestic violence against the other party or against the child or the child's siblings within the previous five years. The bill specified the factors that the court would need to consider rebutting the presumption. The bill was popular.

At the time, I was the chair of the State Bar's Family Law Section's Committee on Custody for Northern California. A part of our work was to review pending legislation and provide our input. I vividly remember sitting with my committee in my office and sharing my opposition to the bill. My primary reason for opposing the bill was based upon my experience in handling both child custody cases and domestic violence cases. That experience with a number of the domestic violence cases that I encountered demonstrated that often there was not a clear definition of perpetrator and abuser and, more importantly, my belief that a presumption removes from the court the ability to make a custody decision based upon a consideration of a number of factors relating to the best interests of the child.

Fortunately, I had Jeanne Ames (1926-2011) working with me on the committee. Jeanne was one of the forces, along with Retired Justice Donald B. King, in the creation of the statewide mandate for child custody mediation intended to focus warring parents on the best interests of their children. Jeanne agreed with me and following a long debate, the Northern California Committee on Custody provided our opposition to the legislation.

Within two or three days, I received a call from a radio host asking me to debate Sheila Kuehl on the bill. I said no. It was the right decision at the time. The bill passed in record time. It was introduced in February and chaptered as urgent legislation in September as Family Code Section 3044.

I am grateful for the attention that was brought to the insidious presence of domestic violence in our society. Today, financial abuse and emotional abuse are rightfully recognized as domestic violence. For some victims, the Simpson story removed the sense of shame that kept them alone in their horror. I strongly believe that the courts must consider abuse when deciding custody.

I have not, however, wavered in my belief that decisions regarding custody must be based upon an analysis of the many factors that relate to the best interests of the child. I still oppose presumptions that limit the Court's ability to consider all of the evidence relating to best interests. The intervening years have repeatedly demonstrated the unintended consequences of the statutory presumption, such as the use of domestic violence allegations to obtain an advantage in custody litigation.