El Cajon Lawyer Excels in Domestic Violence Restraining Order Trials
Lounsbery Law Office, PC successfully handles domestic violence restraining orders in all courthouses throughout San Diego County. Below we have summarized for you the law and procedures involved in domestic violence restraining orders. If you have any questions not answered here, please do not hesitate to contact us. You can also read about civil harassment restraining orders.
What is the purpose of a domestic violence restraining order?
A domestic violence restraining order (also called a DVRO) is intended to prevent a recurrence of domestic violence and ensure a period of separation of the people involved when there is reasonable proof of at least one previous act of abuse. Family Code § 6300.
What is domestic violence?
“Domestic violence” is defined in Family Code § 6211 as abuse perpetrated against any of the following people:
- Current or former spouse
- Current or former cohabitant-a “cohabitant” is someone who regularly resides in the household (Family Code § 6209)
- Someone with whom you are currently or were formerly in a dating relationship
- Current or former fiancé or fiancée
- A person with whom you have had a child
- A close relative, such as a parent, child, brother, sister, grandmother, grandfather, or in-law
A “cohabitant” is someone who regularly resides in the household. Family Code § 6209.
A “dating relationship” means frequent, intimate associations primarily characterized by the expectation of affection or sexual involvement independent of financial considerations. Family Code § 6210.
Who may seek a DVRO?
Any of the people listed above may seek a domestic violence restraining order. The fact that a victim of domestic abuse has vacated the household in order to avoid abuse is not a reason for a petition for a domestic violence restraining order to be denied.
What qualifies as “abuse”?
The term “abuse” for purposes of a domestic violence restraining order is defined in California Family Code § 6203 as any of the following:
- Intentionally or recklessly to cause or attempt to cause bodily injury.
- Sexual assault.
- To place a person in reasonable apprehension of imminent serious bodily injury to that person or to another.
- Molesting
- Attacking
- Striking
- Stalking
- Threatening
- Battering
- Harassing
- Making annoying telephone calls
- 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
- Coming within a specified distance of, or disturbing the peace of, the other party’s family or household members.
What is the process for seeking a DVRO?
Someone seeking a DVRO (called the petitioner) must file the appropriate forms in court requesting an ex parte (or temporary) restraining order. “Ex parte” means “without a party,” or that one party seeks relief from the court without the other party being present to respond to the allegations. The forms you will must describe the factual scenario that constitutes abuse and who committed the abuse (called the respondent).
A judge will normally deny or grant the ex parte petition for an order on the same day the petition is made. Family Code § 6326.
What will the judge order in a Temporary DVRO?
Per Family Code §§ 6320(a) and 6322, an ex parte order may restrain the respondent from doing any of the following against or toward the petitioner:
- Molesting
- Attacking
- Striking
- Stalking
- Threatening
- Battering
- Harassing
- Making annoying telephone calls
- 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
- Coming within a specified distance of, or disturbing the peace of, the other party’s family or household members.
Orders Regarding Pets
In addition, the judge may grant the petitioner sole possession and care of any animal shared between you and respondent or owned by any minor who lives in either petitioner’s or respondent’s home. The court may also order the respondent to stay away from the pet. Family Code § 6320(b).
Orders Regarding the Family Dwelling
The court may issue an ex parte order excluding the respondent from the family’s home, the home of the petitioner, or the home of any child protected by the order. This order would last for as long as the court determines appropriate and can be issued without regard to who owns the home in question. Family Code § 6321(a).
Orders Regarding the Petitioner’s Whereabouts
The petitioner need not disclose his or her address to the respondent when requesting an ex parte hearing. The court may prohibit the respondent from attempting to discover the petitioner’s whereabouts. Family Code §§ 6322.5 and 6322.7.
Orders Regarding Child Custody and Child Visitation
The court may make temporary custody and visitation orders of a minor child of the parties, even by granting the petitioner sole legal and physical custody. Family Code § 6323(a). The court can even order that any visitation the respondent has with a minor child be supervised by a third party. Family Code § 6323(d).
Orders Regarding Property and Bills
The court may make orders determining who will have control and use of real property and personal property and make an order as to who is to pay household bills and expenses. Family Code § 6324.
What happens if the judge denies my ex parte request for a temporary domestic violence restraining order?
The judge must grant you a hearing to decide whether or not to grant you a permanent domestic violence restraining order. That hearing will normally be held no later than 21 days after your petition is denied. Family Code § 6320.5(b).
How long does the ex parte DVRO last?
An ex parte domestic violence restraining order issued by a judge will usually last no longer than 21 days or up until the date of the hearing. The judge will schedule the hearing to determine whether or not the domestic violence restraining order should be put into place long-term.
How do I have the Temporary Restraining Order and/or Notice of Restraining Order Hearing served on the Respondent?
Pursuant to Family Code § 6320.5(b), the respondent must be personally served with copies of all supporting papers filed with the court, including the application and affidavits. They must be served at least five days before hearing. The petitioner may not be the person who serves the respondent. The server must be an individual 18 years old or older who is not a party to the case.
I’ve been served with a Temporary Restraining Order and/or Notice of a Restraining Order hearing. How do I respond?
You should respond to the petition. Failure to respond could cause the order to be issued against you long-term and affect numerous rights you currently enjoy. You should consult an attorney before you file your response. The words you choose and evidence you present can either help or hurt your case or even expose you to criminal liability by being prosecuted for a crime. The timing in which you respond can also determine whether or not you win or lose.
What happens on the hearing for a permanent domestic violence restraining order?
At the hearing, both parties will have the opportunity to testify, have other witnesses testify, and present arguments to the judge as to why the restraining order should or should not be granted on a long-term basis.
If the respondent does not wish to go forward with the trial at that time, he or she may have the hearing continued to another date. However, if a temporary order is already in place, the order will remain in effect until the date of the hearing. Usually the continued hearing is scheduled to take place within 21 days.
If the petitioner does not show up at the hearing, the restraining order petition will be dismissed.
What is the petitioner’s burden of proof?
The Family Code does not explicitly specify the petitioner’s burden of proof. Uses language such as “reasonable proof” and “good cause”; however, it appears from case law and courtroom experience that judges tend to apply the preponderance of evidence burden.
How do I win the permanent restraining order hearing?
These cases are very fact specific. The laws are complicated. Many issues get rolled into one hearing. It is best to have an attorney represent you to give yourself the best chance at convincing the judge that your position is the correct one.
How long does a permanent DVRO last?
At the hearing, if the judge decides a restraining order is appropriate, he can issue a DVRO for up to five years. Family Code §§ 6302 and 6345(a).
The failure to state the expiration date on the face of the form creates an order with a duration of three years from the date of issuance. Family Code § 6345d(c).
The permanent restraining order is subject to modification or termination by further court order. The parties may file a written stipulation that they both agree to modify or terminate the permanent restraining order. Or either party may file a motion with the court requesting modification or termination.
May I renew or extend a domestic violence restraining order?
The permanent restraining order may be renewed or extended upon the request by either party for another five years or permanently. The request for renewal must be brought at any time within the three months before the expiration of the order. The renewal may be granted by the judge even without any proof of any further harassment since the issuance of the original order. Family Code § 6345.
Can I hire a lawyer to represent me at the hearing?
Either party may hire an attorney to represent them at the hearing. The winning party may ask the court to order the other party to pay for his attorney fees and costs. Family Code § 6344.
At Lounsbery Law Office, PC, we have won more restraining order cases than we can count. We would be honored to talk to you about how we may be able to help you in your case. To speak with El Cajon attorney Tate R. Lounsbery right away, call us at 619-792-1451 or email us.