Domestic Violence Restraining Order

Domestic Violence Restraining Order

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What is Domestic Violence?

Domestic violence is violent, aggressive or abusive behavior against a person stemming from one of the following relationships with the aggressor: married, divorced, separated, registered domestic partnership, have a child together, dating or used to date, live together or used to live together, or you are related by blood, marriage or adoption.

What is Abuse?             

Under Family Code section 6203, “abuse” means any of the following four acts:

(1) Intentionally or recklessly causing or attempting to cause bodily injury; (2) Committing sexual assault; (3) Placing a person in reasonable apprehension of imminent serious bodily injury to that person or another; (4) Engaging in any behavior that has been or could be enjoined pursuant to Family Code 6320 (discussed below). Abuse is not limited to the actual infliction of physical injury or assault.

Family Code 6320 includes several types of nonviolent conduct that may constitute abuse within the meaning of the DomesticViolence Protection Act, including stalking, threatening, harassing, making annoying telephone calls, destroying personal property, or “disturbing the peace of the other party,” which involves “conduct that destroys the mental or emotional calm of the other party.” (“Disturbing the peace of the other party” may include accessing, reading, and publicly disclosing spouse’s confidential e-mails.)

The definition of “disturbing the peace” in the Penal Code is not applicable to the meaning of “disturbing the peace of the other party,” as used in the DomesticViolence Protection Act. In the Domestic Violence context, “disturbing the peace” is much broader and applies to a range of conduct by the aggressor that is invasive or offensive.

What Can You Do if You Are a Victim of Domestic Violence?

If you are a victim of domestic violence, you can seek a restraining order against the abuser. A domestic violence restraining order can help protect people who have been abused or threatened with abuse.

What is a Domestic Violence Restraining Order?

A domestic violence restraining order is an order of the court requiring a person to refrain from a particular act or conduct. After a noticed hearing, the court may issue personal conduct, stay-away, and residence exclusion orders pursuant to the Domestic Violence Prevention Act. These orders can stop a person from taking particular actions (like making phone calls or discussing personal matters during exchanges), prevent a person from coming to your house or the children’s school, or even require a person to leave the family residence.

What Is the Procedure for Obtaining A Domestic Violence Restraining Order?

The person seeking protection must use the DV-100 Request for Domestic Violence Restraining Order form. A completed CLETS-001 Confidential CLETS Information form must also be submitted, along with an ex parte application. Additional forms are required if the person seeking protection is also seeking child custody and visitation orders. If the person seeking protection wants immediate relief, he or she must also file form DV-110  for a Temporary Restraining Order.

Requests for domestic violence restraining orders must be supported by factual allegations showing past acts of abuse. The person seeking protection must describe in detail the most recent incident of abuse and must also describe previous occurrences of abuse. You should include all evidentiary facts that justify the relief sought – i.e. what happened, when it happened, who was present, etc. This is especially true if you are also seeking a Temporary Restraining Order, as these orders are granted or denied strictly on the basis of the supporting factual declarations. Ex parte request for a Temporary Restraining Order must be made on judicial council form DV-110.

If you are considering filing for ex parte request for a Temporary Restraining Order, please note that adomesticviolence Temporary Restraining Order may issue “with or without notice” to prevent acts of domesticviolence, abuse and sexual abuse upon reasonable proof, to the court’s satisfaction, of a “past act or acts of abuse.” In other words, you do not have to notify the other person that you have petitioned the court seeking protection. However, you do have to notify the person of the court hearing the court will schedule at the time it grants or denies your Temporary Restraining Order. Please also note that the ex parte order takes effect only upon proper service on the party to whom the order is directed.

What Is The Duration of a Temporary Restraining Order?

Most temporary restraining orders have a maximum of 21-25 day duration. The orders must be scheduled for a hearing requiring proof why a “permanent” order should be granted at the earliest possible date but no later than 21 days or, if “good cause” appears to the court, 25 days from the date of the ex parte orders. (See Family Code §§ 242(a), and 244(b).)

How Can I Respond to a Request for a Domestic Violence Restraining Order?

Your Response must be made by way of the DV-120 Response to Request for Domestic Violence Restraining Order form. You will also have the opportunity to be heard in court, allowing you to present your own testimony, evidence and witnesses.

How Can Domestic Violence Impact Child Custody?

A Domestic Violence Restraining Order can have serious consequences on child custody. If a court decides there is domestic violence (now or in the past 5 years) against a parent or the children, the judge must follow special rules to decide custody of the children.

Upon a finding by the court that a party seeking custody of a child has perpetrated domestic violence against the other party seeking custody of the child or against the child or the child’s siblings within the previous five years, there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child, pursuant to Section 3011. This presumption may only be rebutted by a preponderance of the evidence. (Family Code section 3044.)

What is the California Law Enforcement Telecommunications System (CLETS)?

To ensure effective statewide enforcement, domesticviolencerestraining orders (including modifications, extensions and terminations thereof) must be registered with the State Department of Justice through the California Law Enforcement Telecommunications System (CLETS). Please note that a Temporary Restraining Order is not entered into the CLETS system. The State Department Of Justice is required to maintain a “DomesticViolenceRestrainingOrder System” and to make all information concerning such restrainingorders (whether or not served upon the respondent) available to court clerks and law enforcement personnel through computer access.

One of the consequences of having a CLETS restraining order is that you cannot possess a firearm. This can have a significant impact if you work as a security guard or a police officer.

How Can the Law Offices of Felix & Killen Assist You?

The attorneys at Felix & Killen have extensive experience with domestic violence restraining orders. We have assisted numerous clients in obtaining restraining orders. We have also successfully defended against frivolous requests for restraining orders. Domestic violence restraining orders can have serious consequences. Having an experienced attorney on your side is highly recommended.

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