What kinds of orders can the family court make after making a finding of domestic abuse? Can the court award damages like pain and suffering?
Domestic violence restraining orders are made through the Family Court in Orange County, to protect people within the same “family” unit from another person within the same family core, or formerly part of the same family core. A person may file a restraining order to protect themselves and other members of their household, including children, from people that are or were related or in a dating relationship.
As explained on our domestic violence FAQ page, restraining order cases are started by the filing of a temporary restraining order. Nearly all temporary restraining orders are granted out of an abundance of caution. All of the same orders that can be entered by the Orange County Family for a temporary restraining order can also be granted for a permanent restraining order after notice is provided to the respondent and after a hearing.
Ex Parte Emergency Domestic Violence Orders
Family Code 6320 sets forth the orders that the court can make on an ex parte emergency basis without notice to the other party, including orders restricting the person from molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, credibly impersonating as described in Section 528.5 of the Penal Code, falsely personating as described in Section 529 of the Penal Code, harassing, telephoning, including, but not limited to, making annoying telephone calls as described in Section 653m of the Penal Code, destroying personal property, contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party, and even protecting pets.
The court may also enter a “kick out” order, which is an order for the sheriff to remove the restrained party from a common residence with the protected person(s). (Family Code 6321) The court also has the option to order that a protected party’s address, or a child’s address, or a caretaker’s address will remain confidential.
Also on a temporary basis, the Orange County Family Court is permitted to issue child custody and visitation orders that are in the best interests of the minor child. (Family Code 6323). Finally, the court is permitted to allow one party the exclusive use and possession (control) of certain personal property (like a vehicle) and “The court may issue an ex parte order restraining any party from cashing, borrowing against, canceling, transferring, disposing of, or changing the beneficiaries of any insurance or other coverage held for the benefit of the parties, or their child or children, if any, for whom support may be ordered, or both.”
Domestic Violence Restraining Orders – After Hearing
In the event that the Family Court determines that domestic violence occurred after a noticed hearing (i.e. where both parties were given the opportunity to submit evidence for the court’s consideration), the judge is permitted to enter any of the above orders plus some additional orders. In total, the orders that an Orange County family judge can order in a domestic violence case include:
- Restraining a person from molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, credibly impersonating as described in Section 528.5 of the Penal Code, falsely personating as described in Section 529 of the Penal Code, harassing, telephoning, including, but not limited to, making annoying telephone calls as described in Section 653m of the Penal Code, destroying personal property, contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party;
- Restraining a person from having possession, control or contact with a family pet;
- Forcing the restrained person from the family home (i.e. the move out order);
- If the parties are married to each other and no other child support order exists or if there is a presumption under Section 7611 that the respondent is the natural father of a minor child and the child is in the custody of the petitioner, after notice and a hearing, the court may, if requested by the petitioner, order a party to pay an amount necessary for the support and maintenance of the child (Family Code 6341);
- An order that restitution be paid to the petitioner for loss of earnings and out-of-pocket expenses, including, but not limited to, expenses for medical care and temporary housing, incurred as a direct result of the abuse inflicted by the respondent or any actual
physical injuries sustained from the abuse (Family Code 6342(a); - An order that restitution be paid to the respondent for out-of-pocket expenses incurred by a party as a result of an ex parte order that is found by the court to have been issued on facts shown at a noticed hearing to be insufficient to support the order;
- An order that restitution be paid to a governmental or private agency that provided services to the protected party;
- An order that the restrained party be obligated to participate in a batterer’s intervention course, usually of 52 weeks in duration (the statute cites that the class will conform with Section 1203.097 of the Penal Code);
- An order for attorney fees and costs to the prevailing party (this motion can be brought after the hearing on the restraining order, which our office has successfully done on previous occasions – see Family Code 6344);
- An order for custody and visitation with respect to minor children (Family Code 6346), keeping in mind the rebuttable presumption under Family Code 3044 that a perpetrator of domestic violence should not have legal or physical custody of a child; and
- An order for spousal support if the parties are married to each other and no spousal support order exists. (Family Code 6341(c))
What about pain and suffering? Can a protected party sue the restrained party in the Family Court for pain and suffering as a result of domestic violence that occurred? The answer is specifically “no”, as Family Code 6342(b) states that damages for pain and suffering are not available.
The judge can order that the restraining order last for up to 5 years. More often than not, Orange County judges will grant a restraining order for 1-3 years. Notably, at the expiration of the restraining order the protected party is permitted to file a request to extend the restraining order and no new evidence needs to be presented. (Family Code 6345) However, there must remain an existing potential for future domestic violence for the renewal to occur.
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