Domestic Violence Restraining Orders

by | May 21, 2021 | Restraining Orders

Domestic violence is a serious allegation and a serious issue that is a common problem in the United States. According to the U.S. Centers for Disease Control and Prevention (CDC), 32.9 percent of women living in California have at some point in their lives been the victim of violence or stalking by a partner. Nationwide, one in four women have reported being victims of domestic violence.

When you report domestic violence to a Court in California, you have the right to request a protective/restraining order against your accused abuser. A restraining order must be approved by a judge and is designed to  provide protection by prohibiting your accused abuser from contacting you in any way or coming within a certain distance of your home, work, school, etc.

If you are a victim of domestic violence or abuse, it is crucial to your safety, and the safety of your family, to get immediate help.

If an event of abuse occurs, California provides a restraining order can be granted to ensure a period of physical separation between parties involved. Abuse is found at the discretion of the Court and is generally defined as intentionally or recklessly causing or attempting to cause bodily injury, placing a person in reasonable apprehension of serious bodily injury, molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, destroying personal property or disturbing the peace of another.

There are generally two parts to domestic violence restraining orders. First, the Court will rule on a request for a Temporary Restraining Order. To receive a temporary restraining order in California, you must prepare and submit a Domestic Violence Restraining Order pleadings.

Depending on the circumstances, such as whether there are children or pets involved, or if you and the other party live in the same property and you need a move out order, there are different pleading requirements to get a restraining order. It is important to remember that the Court generally cannot issue an order for things you don’t ask for. For this reason, you should consider your specific circumstances and determine what you need the Court to do. For example, in your pleadings you may also request a “move out order” to have the accused abuser removed from your home. To get a “move out order” however, the party to be excluded must have assaulted or threatened to assault the requesting party. Depending on the type of order you receive, you may also receive temporary sole custody of any children or pets until the domestic violence hearing. The requesting party can also request the Court order the accused party to pay the upcoming debts such as rent or household bills. These debts, however, generally have to fall within the time frame of the temporary restraining order to be granted and enforceable.

When preparing your pleadings, you should also consider submitting evidence of the claimed abuse with your pleadings to assist the Court in understanding your case. Things like photos, text messages and witnesses statement can be very helpful to both the party claiming abuse and the party defending against the claims.

Once your pleadings are submitted, a judge will review your request and will decide whether to grant your request for a temporary restraining order based on the pleadings you submitted. This decision usually occurs within 24 hours from when you submit your pleadings. Temporary Restraining Orders commonly last two to three weeks.

Temporary restraining orders will include a stay away distance to provide the parties separation. A standard stay away distance is 100 yards, the average length of a football field. If you and the accused go to school together or work together, the Court order cannot prevent the other party from going to work or school. If that is your situation, you will need to explain this issue to the Court and request an exception be included in your order so the Court can provide a specific distance the other party must stay away when in those settings. For example, the Court can include a 10 yard required distance exception in those circumstances.

If you receive a temporary restraining order, the Court will then schedule you a hearing date. At this point, the accused person must be served the filed pleadings and the notice of hearing date that is issued by the Court prior to the hearing date. While there are specific service requirements, generally anyone over 18 that is not the accuser may serve the pleadings on the accused. In San Diego, the San Diego County Sherriff’s Office can often serve the pleadings on the accused for you if you request it. In California, if the protective party can prove they have been attempting to serve the accused, and the other party is evading service the Court can order service via alternative means.

Once the accused is served Notice of the hearing and a copy of the pleadings that were filed by the accuser, the accused then should file responsive pleadings to the Court. This provides the accused the chance to have their side of the story told before a restraining order longer than the temporary restraining order can be ordered against them. At the Restraining Order Hearing, the Court will review the pleading of both parties and will make a determination based on the preponderance of evidence standard.

If the Court grants the request, the restraining order can be granted to last for up to 5 years. Further, restraining orders entered in San Diego are enforceable anywhere in the United States. Generally, a person with a restraining order against them must turn in fire arms while the order is in place. The requesting party is also often given permission from the Court to record any interactions they have with the restrained person. The Court can also order the restrained person to reimburse the requesting party if the Court finds the restrained person caused property damage such as a broken call phone.

If you are a victim in a domestic violence hearing, or you are accused of domestic violence and are the respondent in a domestic violence hearing, it is important that you are prepared for the Court to hear and understand your side.  Having an experienced family law attorney on your side can assist you.

3034-if a child witnesses abuse it is considered abuse towards a child. If there is abuse towards a child there is a presumption that the other party gets custody of the child. The presumption is rebuttable and the court will review a variety of factors to determine if.

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Intimate partner violence results in more than 18.5 million mental health care visits each year in the U.S. Of those, 85 percent of domestic violence victims are women. The impact of domestic violence on children is also serious. Between 30 to 60 percent of abusers also abuse children in the household.

During the hearing, a family court judge will decide whether there is sufficient evidence to support protective orders in favor of the victim. Both the victim and abuser will be present to represent their sides of the case. Each of them is allowed to have a lawyer present, as the judge may also decide family law matters, such as child custody and visitation, at the hearing. Generally, these cases are decided in a single hearing unless one side requests a continuance to have more time to prepare their case. Cases can take hours or be decided in a short period of time if one of the parties does not show up.

The judge will evaluate several factors related to the case, including:

  • Testimony from both sides
  • Previous reports of abuse or violence
  • Witness testimony
  • Physical evidence of abuse, including damaged property, text messages, and police reports

If the judge approves the permanent protective order, the new order will last for up to five years. The judge may also determine that the victim will get sole custody of the children to keep the entire family safe from abuse. However, custody and visitation can also be decided even if the order is denied, especially if the judge feels there is significant evidence that the accused is a danger to the children.

If you are the petitioner (victim) in a domestic violence matter, you can take the following steps to prepare for a domestic violence hearing:

  • Prepare a thorough history of your relationship with the abuser.
  • Provide any evidence you may have about past abuse.
  • Take photographs of your injuries.
  • Request copies of your medical records if you sought out medical attention after being abused.
  • Write down the day, date, time and place of the last time you were abused.

Evidence in a domestic violence hearing can vary depending on the situation, but any records of abuse can prove invaluable to your case. This can include previous reports of abuse, written records of abuse (journals, letters, etc.), text messages or voice mails, medical evaluations, and witness statements. You should acquire all available evidence that you can and present it to your attorney before your hearing, as you cannot guarantee that the judge will approve the permanent protective order on your testimony alone.

Document your financial needs if you also plan on requesting emergency family maintenance at your domestic violence hearing. You will have to make a list of your income and monthly expenses to support your request. In addition, you will want to prepare for the possibility of custody orders and work with your attorney to prepare your request for sole custody.

A restraining order is issued by a court and is ultimately designed to protect an individual from any harassment, threats, stalking, or physical harm caused by the person named in the order. The protective order can have certain terms and conditions that prohibit specific actions such as making contact or entering a property. Intentionally ignoring the provisions of that restraining order is strictly prohibited.

California’s Penal Code 273.6 PC makes it a crime to violate a domestic violence restraining order. A California restraining order is issued by a judge and the terms or conditions cannot be intentionally violated without consequence. A restraining order is synonymous with a protective order or a stay away order and the act of violating such an order is illegal.

When facing charges of violating a domestic violence restraining order, Penal Code 273.6 PC, it’s recommended that you find strong legal representation. A criminal defense attorney who is familiar with the punishments and penalties associated with violating a domestic violence restraining order can help inform you on the best possible course of action. The following are a few examples that demonstrate what it means to violate a domestic violence restraining order.

are three levels of protection within a restraining order that can be issued by a judge.

Emergency Protective Orders are put in place in emergency cases and last for up to seven days. For example, when a police officer is called to a domestic violence situation and they suspect the alleged victim is in danger they can contact an on-call judge to issue the order.

Permanent Restraining Orders can be issued in cases where the individual who applied needs extended protection. They can last for up to three years and even longer if the judge determines an extension is necessary.

California Penal Code 243(e)(1) PC domestic battery

This is defined as the intentional and unlawful touching of an intimate partner that was either harmful and/or offensive.

California Penal Code 273.5 PC domestic abuse;

Causing corporal injury to another person whom you were in intimate relations with is considered domestic abuse.

California Penal Code 646.9 PC stalking;

This law prohibits the harassment or threats towards another individual to the extent that this person fears for their safety or the safety of their loved ones.

California Penal Code 422 PC criminal threats;

This is defined as any threat(s) made to another person with the specific intent to make them fear for their physical safety or the safety of their family.

Violating a domestic violence restraining order is also referred to as being in contempt of court. In order for the prosecution to get a conviction for Penal Code 273.6 PC, they must first prove the following elements of the crime.

The domestic violence restraining order was lawfully issued by a judge,

The defendant had prior knowledge of the court order,

The defendant was fully capable of following the legal protective order, yet

The defendant intentionally/willfully chose to violate that order.