Domestic violence is an emotionally charged, often very difficult aspect of family law. Whether you are filing for a domestic violence restraining order or defending a restraining order, it will be helpful to have a seasoned Irvine domestic violence lawyer on your side. Our lawyers have litigated hundreds of cases successfully and understand the Domestic Violence Prevention Act, the Evidence Code, and the related Family Code sections which all play a vital role in pursuing or responding to DV cases.
Domestic violence or domestic abuse cases can be hotly contested due to the ramifications that a permanent restraining order can have on the restrained person. If a permanent restraining order is granted after a noticed hearing, the information relating to both parties and the circumstances of the RO are input into the CLETS system, which is a statewide law enforcement system that alerts law enforcement personnel of the existence of a restraining order.
The law requires the court to conduct an evidentiary hearing, similar to a trial, in all restraining order cases unless the parties agree that the hearing will be conducted only by written pleadings. Thus, having a trial attorney with significant experience in Orange County domestic violence cases is absolutely critical.
What could be considered Domestic Violence or Abuse?
Domestic violence isn’t just physical abuse. Here are some of the main acts that can be considered domestic violence or domestic abuse:
- Verbal Abuse
- Sexual Abuse
- Emotional Abuse
- Harassment
- Property Destruction
- Psychological Abuse
- Intimidation and/or Threats
Procedure for Obtaining a DV Temporary Restraining Order (TRO)
Domestic violence restraining orders can be obtained on a temporary basis without notice to the other party by filing a request for a TRO with the Family Court. There are a number of forms that are required for the court to consider whether to order a DVTRO, which include the request form and description of abuse. (Click here for the forms to file.) You will need, at a minimum, DV-100, DV-101, DV-105 if children are involved, DV-109, DV-110, and you will need to print a blank DV-120). The request for a temporary restraining order is provided to the court along with a form for the actual Temporary Restraining Order. Once the court issues the temporary order, it will set a hearing within approximately 21 days for the “permanent” RO hearing to determine if the RO should continue in effect.
What kinds of Domestic Violence are Covered under California Domestic Violence Law?
To qualify for a temporary restraining order and possibly a “permanent” domestic violence restraining order, the party seeking the restraining order must show that the other party is related to the party seeking the restraining order, or they had a dating relationship, or were married, or share a child together, or are “closely related” like an in-law, and is guilty of doing any of the following to the victim:
- Abused them or threatened to abuse them
- Caused bodily harm or attempted to cause bodily harm
- Caused the party seeking the restraining order to have a reasonable fear of imminent bodily harm
- Molested them
- Attacked them
- Struck them
- Battered them
- Stalked them
- Harassed them
- Telephoned them (repeatedly)
- Disturbed the peace of that person seeking the restraining order.
What Happens After the Temporary Restraining Order is Issued?
After the family law judge issues the temporary restraining order, the documents need to be personally served on the restrained party. This is usually accomplished by the local sheriff, free of charge. Alternatively, the documents can be served by any adult that is not “interested” in the proceeding (i.e. not a party and not a witness.) The responding party then will file a response or “answer” to the request for a RO. Usually, the restraining order identifies how many days in advance of the hearing the documents must be served on the restrained party. If not served properly, the requesting party usually simply requests that the court “reissue” the temporary restraining order.
What if the Restrained Party has Guns/Ammunition?
Once a temporary restraining order is issued, the order goes into the “CLETS” system, which is the law enforcement tracking system. Parties with weapons must turn in their firearms.
How do I defend a Request for a Domestic Violence Restraining Order?
Preparing a proper defense to a request for a restraining order in California is extremely important if you did not commit the alleged act of domestic violence. Even if you did participate in the acts alleged by the moving party for a restraining order, it is important to take the proper steps to rectify the wrongdoing so that it doesn’t effect other aspects of your life, including child custody and parenting.
As a responding party to a DV restraining order, you have the option of filing a “declaration” stating your side of the story. The responsive declaration is not required, and should be used with caution. The reason is that declarations are signed under penalties of perjury, and serve as the basis for an effective cross-examination during the evidentiary hearing that will occur in a DV case. Only file a declaration if you are totally sure that the facts are accurate and appropriate.
Our Orange County family law attorneys typically suggest filing the appropriate responsive forms to a Domestic Violence Restraining Order.
In defense of the restraining order request, be prepared to present evidence to the court that contradicts the allegations made by the other party. Also be prepared to “cross-examine” the other party and his or her other witnesses. Family Code 217 requires the exchange of witness lists prior to the hearing.
Be prepared to bring witnesses to the hearing to help your defense, and those persons may wish to file a written declaration in case the court does not have time to entertain the testimony of all the witnesses.
What is the Significance of Restraining Orders with Child Custody?
In California, when the court issues a permanent restraining order (i.e. any restraining order after a hearing and opportunity to be heard) there is a presumption that the perpetrator of domestic violence should not have child custody rights over the child. Why is this important? If the other parent of your child files a temporary restraining order against you it is imperative that you defend against the restraining order or your parenting time with your child could be significantly reduced or disallowed altogether. Family Code 3044 provides the statutory guidance for the court that requires the court to ensure that perpetrators of domestic violence are not given custody without precautionary measures.
The presumption that perpetrators of domestic violence should not have custody is a rebuttable presumption, which means that the perpetrator can provide evidence to the court that even though there was a finding of domestic violence the he or she has taken steps to ensure that they provide a safe environment for the child.
Typically family law litigants will provide proof of completion of parenting courses, proof of individual therapy, and completion of a batterer’s intervention course are common ways that people try and overcome the presumption.
For legal guidance from a specialized Orange County child custody attorney, get in contact with Wilkinson & Finkbeiner.
Evidentiary Hearings and Continuances of the Hearing in a Domestic Violence Case in Irvine
The current law allows the responding party one mandatory continuance if so requested. The party requesting a restraining order is not permitted a continuance if the responding party requests to move forward on the day of the hearing. In any event, the court is required to conduct an evidentiary hearing, which is basically a trial where witnesses are called and evidence is sought be admitted.
Legal Standard for Obtaining a TRO and RO
It is very easy to obtain a temporary restraining order. Essentially, as long as there is some reasonable basis for the RO, the court will grant the request. The reason for this is to err on the side of caution to ensure the safety of everyone in the household, including the protected party, children, and now even pets may be “protected” under a family law restraining order. The standard to obtain a permanent restraining order is by a “preponderance” of the evidence, which means more likely than not.
Move Out Orders
The requesting party of a restraining order is permitted to request the court order the opposing party to vacate the family residence. This is done by making the proper request and the local law enforcement will then remove the person from the home. They will allow the restrained party a short period of time to obtain their belongings. These orders are especially infuriating to individuals who did not actually commit any acts of domestic violence.
Move out orders are served by the sheriff to ensure that there is no further domestic violence. However, the sheriff does not have to serve the move out order. It can be served by any competent adult that is not associated with the case.
Are there Penalties for People that File False Restraining Orders?
There can be. If the court finds that the party seeking a restraining order filed a restraining order in bad faith, the court can sanction that party and force them to pay attorney fees. Further, the court can make orders for custody and visitation that are adverse to the requesting party’s desires. Finally, if there are other connected issues, such as a divorce case between the parties, the fact that the person filed a bad-faith restraining order can be used as evidence in the divorce case to discredit the requesting party.
What happens if someone violates a Domestic Violence Restraining Order?
If a person violates a temporary or permanent restraining order, there can be many very serious repercussions. For example:
- A person violating a DVRO (restraining order) can be arrested.
- A contempt action can be brought in the family court.
- The custodial rights of the perpetrator violating a DVRO can be even more restricted.
Are Damages Available to A Victim of Domestic Violence (Abuse?)
An order for attorney’s fees and costs likely depends on who the prevailing party is.
Prevailing Party: Petitioner
A fee award for a prevailing Petitioner is near-mandatory if the Petitioner cannot afford the attorney’s fees and costs incurred and the Respondent can afford to “chip in.” Whether the court orders the Respondent to pay attorney’s fees and costs for the prevailing Petitioner, and what amount will be paid, is determined based upon:
1) the respective incomes and needs of the parties, and
2) any factors affecting the parties’ respective abilities to pay. (See Family Code Section 6344.)
A motion for attorney’s fees and costs based upon a successful Domestic Violence Restraining Order can be brought after the hearing, which our office has successfully done on previous occasions.
Prevailing Party: Respondent
Although there is no specific statute or code that addresses attorney’s fees and costs for a prevailing Respondent, a fee award for a prevailing Respondent is discretionary, meaning the court is not required to award attorney’s fees and costs, and is not based on incomes or abilities to pay. When pursuing a prevailing Respondent’s Domestic Violence defense fees, the motion should be approached like a motion for sanctions such as looking to whether the Petitioner’s filing for a Domestic Violence Restraining Order was unreasonable with egregious facts which caused the Respondent to incur the unnecessary cost of defending himself/herself. This could mean that the Petitioner misused the Domestic Violence Restraining Order procedures in order to obtain an unfair advantage in the following areas: child custody, exclusive use of the family residence, avoid spousal support, or to inflate their alimony entitlement claims. Some other considerations that could be taken into account are whether Petitioner presented no independent corroborating evidence to support his/her accusations, urge that the court should impose consequences for those who manipulate the judicial system, what consequences to the Respondent could have occurred if the Respondent did not spend what was required to clear his/her name, and that the Respondent had to borrow money from family and friends to hire an attorney to defend the Domestic Violence Restraining Order request.
Seek an Experienced Orange County Domestic Violence Lawyer for Your Case
Restraining Orders can be difficult to navigate. The forms can be overwhelming and the legal procedures can be even more overwhelming. Contact the seasoned Orange County divorce attorney team at Wilkinson & Finkbeiner, LLP in Irvine, CA today to discuss your options relating to filing or defending a restraining order with one of their experienced Irvine domestic violence lawyer. Call them today! 949-955-9155
If you have been victim to domestic violence, you are not alone. Please be sure to get help somewhere. You can utilize any of the following Orange County Domestic Abuse services. They are available to help you through these troubling times.
- Laura’s House – 949-498-1511
- WTLC – 877-531-5522
- Young Women’s Christian Association of Orange County – 714-549-9622
- Human Options Hotline – 949-854-3554
- Interval House Hotline – 714-891-8121