DV Restraining Orders
DV Restraining Orders
Domestic violence restraining orders are legal commands issued by family law judges to persons alleged to be violent or abusive towards persons closely related to the alleged violent or abusive person. For example, a family law judge could order a wife to have no contact with her husband after the wife's alleged abuse towards husband.
Domestic violent restraining orders (DVRO) are different from other types of restraining orders. With domestic violent restraining orders the alleged abusive or violent person (Respondent) and the alleged victim (Petitioner) share a close relationship or affinity. Restraining orders other than domestic violence restraining orders include: criminal protective orders (CPO), civil harassment restraining orders, and emergency protective orders (EPO) [EPO can be used in DV case].
In domestic violence restraining order cases the relationship between the alleged abusive or violent person and the alleged victim must be domestic in nature. A domestic relationship means that the alleged abusive or violent person and the alleged victim are related in any of the following ways: Spouses, domestic partners, siblings, parents to a child in common (including adoptive and presumed parents), child to parent and vice versa, grandparent to grandchild and vice versa, cousins, romantic partners (or former romantic partners), or cohabitants (or former cohabitants).
Note: A romantic partner is a person connected to another person by frequent, intimate associations, primarily characterized by the expectation of affection and/or sexual involvement, independent of financial considerations.
Abuse or Violence Required
Before a family law judge grants a domestic violence restraining order the alleged victim must show that the abusive or violent person committed one of the following crimes or civil wrongs: assault, battery, stalking, criminal threats, intentionally annoy, harass, intentionally intimidate, or intentionally destroy personal property of the victim.
Common protective restraining orders made in domestic violence restraining order cases include: stay away orders (no contact), no negative contact (very common when Petitioner and Defendant share custody of children), sell or relinquish firearms, transfer phone number, consent to record conversations, pay restitution (when property is destroyed or victim suffers medical costs), pay spousal support or child support, pay attorney fees, mandatory DV classes, supervised child visits, move out of residence, attend mediation, transfer pet, return property, travel with children restriction, and more. Family law judges may make any domestic violence restraining order reasonably necessary to protect the victim and the victim's family.
Consequences of DVRO
If a defendant has a domestic violence restraining order issued against her or him there are other negative consequences besides the court's orders themselves that defendants may suffer. These negative consequences can include: loss of firearm rights, (even if the family law judge doesn't order it), loss of employment, loss of the right to receive spousal support, loss of the privilege to practice in a profession (medicine, law, dentistry, etc., even if the family law judge doesn't order it), loss of adoption rights, loss of immigration status, contempt of court (willful violation of a court order), violation of a restraining order, and more.
Note: Many times the defendant is simultaneously facing a request for domestic violence restraining order in family law court and a criminal charge, such as inflict corporal injury to spouse or domestic battery. This happens when the abusive or violent conduct alleged against the defendant constitutes a crime, such as criminal threats, stalking, assault, battery, etc. This situation makes it nearly impossible for a person to respond to a domestic violent restraining order because anything he or she says in his or her defense can be used against him or her in criminal court. In this situation, a defendant (Respondent) should contact a family law attorney familiar with criminal defense, or vice versa, without delay. See PC 273.5(a) Inflict Corporal Injury to Spouse and PC 243(e)(1) Domestic Battery (This site).
Procedures for Filing a DVRO
Certain requirements must be met in order to apply for a domestic violence restraining order. These requirements include proper service and notice upon the Respondent of the DVRO request. Usually, the family law court will issue temporary domestic violence restraining orders based on the allegation in the Petitioner's paperwork alone but a defendant has the right to be heard even on a request for temporary domestic violence restraining orders. Regardless of whether or not the family law court issues any temporary domestic violence restraining orders the judge will usually set the matter for a subsequent and full evidence hearing where both parties may present their case and defense. After a full hearing on the issue a judge may order permanent domestic violence restraining orders necessary to protect the emotional and/or physical well-being of the Petitioner. Permanent domestic violence restraining orders can last from one to five years.
Note: In family law domestic violence restraining order cases the formal notice requirement is relaxed and the Respondent must be served formal notice only as necessary as the emergency requires. For example, it is possible for a defendant to receive no prior notice in a DVRO request if the nature of the alleged abuse or violence requires it. In most cases however, the Petitioner must serve the Respondent with DVRO paperwok at least one day in advance of the hearing on request for domestic violence restraining order. Any person over eighteen, who is not a party to the case, may serve a request or response to a DVRO.
Legal Forms are required to start or respond to any request for domestic violence restraining orders. The DVRO forms may be found at judicial counsel forms of California. Unfortunately, the forms do not provide information on how a victim or defendant should describe alleged abuse or defense in a declaration. For the victim, always be truthful and descriptive, but be aware that any information stated in a declaration may be used against either side in family or criminal court. For the defendant, never state a defense beyond general denials without consulting a family law attorney familiar with criminal defense., Also, domestic violence restraining orders forms do not provide information on the following: rules of court, legal procedure, rules for introducing or excluding evidence (photos, texts, emails, phone records, medical records, recordings, etc.), rules for examining and impeaching witnesses, etc. Family law judges are not lenient with the rules of legal procedures just because a non-attorney is unaware of them.
Preparing for a DVRO Hearing
Arrive early to court; long lines at secured entrances and a lack of good parking cause tardiness. Bring three copies of all paperwork filed and served, including copies of evidence you intend to present at court (photos, text printouts, emails, phone records, video or audio recordings, etc.). Inform the court's deputy if you are afraid of the opposing party and request an escort if you feel threatened. If you do not have a family law attorney to speak for you practice your strongest arguments with an understanding that a judge will not likely entertain more than few minutes of argument at an emergency request for domestic violence restraining orders (ex parte hearing). Take notes and do not interrupt the judge or opposing party (legal objections aside). Business dress: No shorts, tank tops, sandals, spaghetti straps, low cut shirts or skirts, heavy jewelry or heavy makeup.
Defense in DVRO Cases
The defendant must be given an opportunity to respond to a victim's request for domestic violence restraining order and no permanent restraining order may be made against him or her unless the alleged victim proves, by clear and convincing evidence to the court, that the defendant committed the alleged violence or abuse. This burden is relaxed at ex parte hearings on requests for temporary domestic violence restraining orders. A defendant should never attempt to defend a request for domestic violence restraining orders without a family law lawyer familiar with criminal defense law as the allegations in most DVRO requests allege facts that can also support criminal charges. For example, the following are common criminal charges related DVRO requests: stalking, battery, assault, domestic battery, inflict corporal injury to spouse, false imprisonment, annoying phone calls, vandalism, trespass, criminal threats, burglary, theft, elder abuse, unauthorized recordings, child endangerment, contempt of court, and more.
Common defenses in domestic violence restraining order cases include: silence, self defense, defense of others, alibi, lack of evidence, legal justification for conduct, procedural defenses (hearsay, foundation, illegal evidence, privilege, etc.), impeachment evidence or witness (bias, prejudice, memory issues, criminal history, etc.).
False Allegations in DVRO Cases
Domestic violence restraining orders requests are sometimes filed fraudulently by petitioners in order to gain short-lived legal advantages against defendants in family court. This is especially true in child custody cases. Perpetrators of fraud are usually discovered in family law court and thereafter those fraudulent persons may face criminal charges themselves (i.e. fraud, perjury, filing false reports, loss of child custody, loss of spousal support, etc.).
Immigration & DVRO
Immigration and DVRO: Family law judges, deputies, clerks, and staff do not work with Immigration Customs Enforcement (ICE). Family law legal forms do not inquire into a person's immigration status. However, be aware, statements made in court or on legal forms in domestic violence restraining order cases may be used against a defendant in criminal or immigration court. Non-U.S. citizens filing a request for, or a responding to, a domestic violence restraining order, should speak to a family law lawyer familiar with criminal defense law and immigration law without delay.
For more information on the law, the procedures, and common defenses related to domestic violence restraining orders, contact our family law lawyers today or visit our Domestic Violence Blog. Our family law lawyers have handled hundreds of cases involving domestic violence restraining orders. We have family law lawyers, criminal defense lawyers, and immigration lawyers ready to answers all of your questions. First-time, in-office consultations are always free. Call today!