Domestic Violence Restraining Orders
Experienced Solano County Domestic Violence Attorneys
If you have been the victim of domestic violence and are unclear on your rights you should consult with an attorney. Likewise, if you have been falsely accused of domestic violence or child abuse, perhaps in a child custody proceeding, you would also benefit from legal representation. A finding of domestic violence may significantly impact the court's decisions regarding spousal support, attorney's fees and custody of your children. Contact our office to learn more about your rights.
The attorneys at the Law Offices of Russo & Prince are experienced in domestic violence cases, having extensive experience handling both the pursuit and defense of restraining orders. Our attorneys aid victims of domestic violence by assisting them in obtaining restraining orders and accessing community resources. They are also experienced in fighting false accusations of domestic violence and protecting their clients reputations against mud slinging by an estranged partner. Contact Us today to learn more about how we can help you protect your legal rights.
Who is protected by a Domestic Violence Restraining Order?
In California, domestic violence applications are governed by the Family Code Domestic Violence Prevention Act (DVPA). The Act protects victims of violence when that violence is perpetrated by a family member. That family member is most commonly a spouse or former spouse, but it can also be a cohabitant (unmarried live-in partner), former cohabitant, boyfriend or girlfriend, the father or mother of the victim’s child, or other romantic partner, a parent, brother, sister or any other person related within the second degree.
A restraining order protecting you against harassment or abuse from someone who is a non-relative is called a Civil Harassment Restraining Order. A civil harassment restraining order operates under different laws and somewhat different procedures. Contact our office to learn more about the difference between these two types of restraining orders and whether you have grounds to obtain one.
What constitutes abuse?
People often think of domestic violence as limited to black eyes and bruises, but this is not the case. A Domestic Violence (DV) Restraining Order protects victims of past, or ongoing, abuse and harassment from future harm, and aids them in getting police protection. Abuse is not limited to physical violence. Protected abuse includes bodily injury, sexual assault, placing a person in fear of imminent serious bodily harm, molesting, attacking, striking, stalking, threatening, battering, harassing, making annoying telephone calls, destroying personal property, or disturbing the peace of the party or his or her family.
In short – a lot of inappropriate, harassing, and threatening behavior can constitute abuse for the purposes of securing a DV restraining order.
What will a court do to protect me and my family?
When a victim files for a restraining order, a court may issue a temporary order restraining a party from perpetrating further harassment or violence (TRO). A court may also give the victim the exclusive use of a formerly shared residence. If the restraining order is granted, it will prevent the restrained party from contacting the victim, and require the restrained party to stay away from the victim’s home, job, and vehicle. The restrained party will also be ordered to dispose of all guns and firearms.
The order may also be extended to protect members of the victim's household, or children. If the abuser is the custodial parent of a protected child, the order will often make allowances for peaceful contact related to the exchange of the children or other co-parenting needs. Having the restraining order in place allows the victim to call the police for help any time the abuser contacts them, approaches their house or workplace, stalks them, or tries to hurt them in violation of the orders.
A temporary restraining remains in place until the date and time of the hearing.
What will happen at my hearing?
A hearing date on the request for restraining order will be assigned at the time the application is filed. At the hearing, each party will present his or her case for the need, or the lack of need, for the order. Either party may also request a trial, and bring witnesses who have observed the actions of the parties and can support the allegations. The parties may also present other evidence such as photographs of injuries or police reports, and can provide testimony.
It is then up to the judge to accept or reject this evidence and determine whether the restraining order is appropriate. The judge may terminate the temporary restraining order, or extend it for up to five years. Following the expiration of the order, it may be renewed if needed.
What is the standard of proof?
The people working in the domestic violence system (judges, court staff, police, attorneys) are sensitive to claims involving domestic violence. The burden of proof in these cases is a preponderance of the evidence which is a lesser burden than what is required in criminal and civil harassment cases.
The judge may grant the restraining order when the evidence is close. This is because judges do not want to make the wrong call, and leave a victim without protection. If you are the victim of domestic violence, you should promptly pursue a restraining order under the Domestic Violence Prevention Act. If you are in emergency situation, you can also call the police to help you get to a safe place, and for a temporary restraining order (TRO).
Should I bother to fight my domestic violence restraining order if I'm innocent?
Yes! A finding of domestic violence can have serious implications in a family law proceeding. There is a statutory rebuttable presumption against granting child custody to a domestic violence perpetrator, so stipulating to a restraining order may not be a good idea if you have children with the victim. A "rebuttable presumption" means that the court presumes that the domestic violence aggressor should not have custody over a child -- but that he/she can rebut this presumption with compelling evidence to the contrary.
Also, a finding of domestic violence may impact your ability to receive spousal support. Under the law, the court must consider documented evidence of domestic violence in making spousal support orders. If you have been found to be the aggressor in a domestic violence case, a court may then deny you support you would otherwise be entitled to.
This doesn't mean that if you have committed domestic violence you should lie to the court. If these issues are present in your case, you should meet with an attorney right away to discuss your options. If you are facing criminal charges, our criminal defense attorney can assist you as well, and can work in concert with your family law attorney to ensure both aspects of your case are well represented.
Will it be expensive?
There are no filing fees to request a domestic violence restraining order, the process is free, and you can even ask the court for an order requiring the restrained party (i.e. the abuser) to pay your attorney fees if you need an attorney.
Contact Us today to learn more about how we can help you protect your legal rights in your domestic violence case.