Restraining Orders

Prosecuting a Domestic Violence Restraining Order

If you are seeking protection from abuse perpetrated by your spouse or partner towards you and or your children, you may apply for a Domestic Violence Restraining Order.   This can be filed on an emergency basis (Ex Parte) if you need immediate protection. This is usually filed using form DV-100, DV-101, DV-109, DV-110, CLETS-001, along with an extensive declaration and supporting evidence.   The court will make a decision whether to grant you an emergency restraining order protection.  Whether or not the court grants the emergency restraining order protection, the court will set a trial for your DVRO.  The papers will have to be personally served on the alleged perpetrator of domestic violence at least 5 court days or more prior to the trial. The respondent will then have an opportunity to file a response, declaration, and evidence in opposition to your allegation.  At the DVRO trial, both parties will have the opportunity to testify, present witnesses, and introduce evidence.

Under California law, "domestic violence" is defined broadly to include a pattern of abusive behavior used by one intimate partner against another to gain or maintain power and control. It's not limited to physical violence and encompasses a wide range of abusive behaviors. Here are the main types of abuse recognized under California's domestic violence statutes:  

Physical Abuse

This is the most visible form of abuse and involves intentional physical harm or injury. This includes Hitting, slapping, punching, kicking, biting, shoving, or choking, Pushing, grabbing, or restraining, using weapons or objects to inflict harm, depriving someone of necessary medical care, Physical intimidation or threats of physical harm   

Emotional or Psychological Abuse

This type of abuse aims to control and manipulate someone's emotions and sense of self-worth. It can be just as damaging as physical abuse and includes: 

1. Verbal abuse: Insults, name-calling, yelling, criticizing, and belittling   
2. Intimidation: Threats of harm, destroying property, stalking, and displaying weapons   
3. Isolation: Controlling who someone sees, where they go, and what they do   
4. Humiliation: Publicly embarrassing someone, making them feel ashamed or worthless   
5. Mind games and manipulation: Gaslighting, twisting reality, and making someone doubt their own perceptions   

Sexual Abuse

This involves any unwanted sexual contact or activity without consent. It includes rape and sexual assault, sexual harassment, pressuring someone into unwanted sexual acts, withholding sex as a form of control, sexual exploitation or degradation   

Economic or Financial Abuse

This type of abuse involves controlling someone's finances and limiting their access to resources. It includes controlling all the finances and not allowing someone access to money, preventing someone from getting or keeping a job, exploiting someone's financial resources , forcing someone to sign financial documents against their will, running up debt in someone else's name

Stalking

This involves a pattern of unwanted attention, harassment, or contact that causes fear or emotional distress. It includes following or spying on someone, repeatedly contacting someone against their wishes, sending unwanted gifts or messages, monitoring someone's online activity such as Instagram or Facebook, threatening someone or their loved ones.   Domestic violence is usually a pattern of multiple abusive behaviors used to exert power and control. A single incident can be serious, but it's important to recognize the overall pattern.   Many forms of abuse involve coercive control, which is a pattern of acts designed to take away someone's liberty and independence. This can include isolating someone, regulating their daily behavior, and monitoring their activities.  All forms of domestic violence can have severe emotional, psychological, and physical consequences for victims.

In addition to a restraining order, you may also ask for child custody, visitation, child support, spousal support, and attorney’s fee order within the domestic violence restraining order application.

The evidentiary burden of proof in court is a preponderance of the evidence. It means that it is more likely than not that a fact is true.

Defending against a Domestic Violence Restraining Order Application

Having a civil restraining order issued against you in California carries serious consequences that can significantly impact your life.  A restraining order can be used as evidence in other legal matters. 

Effect on Child Custody Issue

A domestic violence restraining order can significantly affect child custody and visitation arrangements, potentially leading to restrictions on your contact with your children. Sometimes, the other spouse will a Domestic Violence Restraining Order in order to gain a strategic or tactical advantage against the other spouse on the issue of custody.

 California Family Code section 3044 establishes a critical presumption in child custody cases where domestic violence is an issue. If a court finds that a parent has perpetrated domestic violence against the other parent or the child within the past five years, there is a legal presumption that awarding custody (either sole or joint, legal or physical) to that parent is detrimental to the child's best interests.  This presumption is a starting point for the judge in making custody decisions. It means the judge must begin with the assumption that the abusive parent should not have custody. However, this presumption is rebuttable.

Effect on Spousal Support/ Alimony

Although a civil DVRO may not have an effect on Spousal Support claim, a conviction for criminal domestic violence has a significant impact on spousal support (also known as alimony). The law aims to prevent abusers from financially benefiting from their abuse. Family Code Section 4325 creates a presumption against awarding spousal support to a spouse who has committed criminal domestic violence against the other spouse.   If a spouse has been convicted of a felony act of domestic violence against the other spouse within the past five years, they are automatically barred from receiving spousal support. This applies to both temporary and permanent spousal support.  If a spouse has been convicted of a misdemeanor act of domestic violence against the other spouse within the past five years, there is a rebuttable presumption against awarding them spousal support.

Criminal Charges for Violation of the Domestic Violence Restraining Order 

The most immediate consequence is that any violation of the restraining order is a criminal offense under California Penal Code 273.6 PC. This means even indirect contact, such as having a third party contact with the protected person on your behalf, can lead to misdemeanor charges. Typically, a first-time violation is charged as a misdemeanor, punishable by up to one year in county jail, fines of up to $1,000, or both.   It can also lead to felony Charges. Subsequent violations or violations involving violence can be charged as felonies, leading to more severe penalties, including state prison time.     If you are an immigrant or a green card holder, it may have immigration consequences as well that could lead to deportation or removal.

Firearm Restrictions

If the restraining order was issued due to domestic violence, you will be prohibited from owning or possessing firearms. This is a federal law and applies even if the restraining order is a civil one.  This scenario become challenging if you work in law enforcement.   

 Personal Consequences

The restraining order will likely restrict your ability to contact, approach, or be near the protected person. This can impact your relationships with family and friends if they are also close to the protected person.   Being subject to a restraining order can negatively impact your reputation in your community and workplace.  Some background checks may reveal the existence of a restraining order, which could make it difficult to find housing or employment in certain fields.   

If you have been personally served with a domestic violence restraining order with a set hearing date, you need to immediately seek legal counsel that is experience in defending you in these matters. Sometimes, the DVRO is filed with the divorce case while other times it is filed as a stand alone case.

 Civil Harassment Restraining Order

A civil harassment restraining order in California is a court order that protects a person from harassment by someone they don't have a close family or intimate relationship with. This is the key difference between a civil harassment restraining order and a domestic violence restraining order (DVRO).   Civil harassment restraining orders are typically used in situations involving, Disputes between neighbors that escalate to harassment, conflicts between roommates that involve threatening or harassing behavior, harassment or stalking in the workplace, harassment or stalking by someone you don't know and any situation where there is harassment but no close family or intimate relationship.   

Under California Code of Civil Procedure § 527.6, "harassment" is defined as unlawful violence, like assault or battery, or a credible threat of violence, or a course of conduct that seriously alarms, annoys, or harasses the person, and serves no legitimate purpose.   

"Course of conduct" means more than one act. It's a pattern of behavior that includes following or stalking someone, making harassing phone calls, emails, or texts, cyberstalking or online harassment, threatening or intimidating behavior and destroying property.

Whatever type of restraining order you need or are dealing with during the course of your divorce, we are qualified to assist you. Call our firm and schedule an appointment with one of our family lawyers!