Temporary Restraining Orders & Domestic Violence Restraining Orders

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Domestic Violence:

According to California Family Code Section 6220, the purpose of the Domestic Violence Prevention Act is to “prevent acts of domestic violence, abuse, and sexual abuse and to provide for a separation of the persons involved in the domestic violence for a period sufficient to enable these persons to seek a resolution of the causes of the violence.” California family law courts issue temporary restraining orders pursuant to California Family Code Section 6300 “if an affidavit or testimony and any additional information provided to the court pursuant to Section 6306, shows, to the satisfaction of the court, reasonable proof of a past act or acts of abuse. The court may issue an order under this part based solely on the affidavit or testimony of the person requesting the restraining order.”

California defines abuse as physically hurting or trying to hurt someone, intentionally or recklessly, or sexual assault, or placing a person in reasonable apprehension of imminent serious bodily injury (threats or promises to hurt someone), or pursuant to Section 6320(a): “The court may issue an ex parte order enjoining a party from molesting, attacking, stalking, threatening, sexually assaulting, battering, credibly impersonating as described in Section 528.5 of the Penal Code, falsely personating as described in Section 529 of the Penal Code, harassing, telephoning, including, but not limited to making annoying telephone calls as described in Section 653(m) of the Penal Code, 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, and, in the discretion of the court, on a showing of good cause, of other named family or household members.”  Section 6320(b): “On a showing of good cause, the court may include in a protective order a grant to the petitioner of the exclusive care, possession, or control of any animal owned, possessed, leased, kept, or held by either the petitioner or the respondent or a minor child residing in the residence or household of either the petitioner or the respondent.  The court may order the respondent to stay away from the animal, and forbid the respondent from taking, transferring, encumbering, concealing, molesting, attacking, striking, threatening, harming, or otherwise disposing of the animal.”

There is a required relationship between the petitioner and respondent prior to granting a domestic violence restraining order. California Family Code Section 6211 mandates domestic violence abuse be perpetrated against a spouse or former spouse, a cohabitant or former cohabitant per Section 6209, a person with whom the respondent is having or has had a dating engagement relationship, a person with whom the respondent has had a child, where the presumption applies that the male parent is the father of the child of the female parent under the Uniform Parentage Act, a child of a party or a child who is the subject of an action under the Uniform Parentage Act, where the presumption applies that the male parent is the father of the child to be protected, or any other person related by consanguinity or affinity within the second degree.  According to Hauck v. Riehl, a parent is unable to obtain a domestic violence restraining order against a step-parent (i.e. father & step-father) since there is no relationship required under the act. In these circumstances, the parent would need to obtain a civil harassment restraining order.

If the court grants a temporary restraining order and/or a domestic violence restraining order, the court will make personal conduct orders that are found in Section 6320. Also, the respondent could be excluded from the residence under Family Code Section 6321. The court can also make additional orders, such as prohibiting the respondent from getting petitioner's address per Section 6322.7, and possessing firearms and ammunition per Section 6389. Child custody and visitation can also be ordered per Section 6323 and 6346. An order after hearing can include child support per Section 6341(a), and spousal support per Section 6341(c). Restitution for loss of earnings and out-of-pocket costs, including medical care and temporary housing may be ordered at the order after hearing per Section 6342(a)(1). Pursuant to Section 6343, the court can order a batter's intervention program for an order after hearing along with attorneys' fees and costs per Section 6344.  There are additional orders the court can make. Consulting with a divorce or family law attorney can help answer your questions if you or a loved one are dealing with domestic violence legal issues.  Keep in mind that Family Code Section 3044 states, “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 custody or legal custody of a child to a person who has perpetrated domestic violence is detrimental do the best interest of the child, pursuant to Section 3011.  This presumption may only be rebutted by a preponderance of the evidence.”

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Our law office would like to hear your concerns about the family law issues that are arising. Contact us anytime for an initial complimentary consultation. We generally answer the phone during non-business hours within reason, and we will get back to you promptly if we are unavailable. Addressing family law issues promptly is critical. Our office will advocate for a fair outcome if you allow us to earn your trust.

Regain Peace of Mind

Our family law attorneys understand how difficult it is when one parent unjustifiably withholds children from the other parent or communicates a desire to move away with the children to another state or county. Obtaining child custody orders from the court will prohibit a parent from taking unjustifiable action. Also, our divorce attorneys know how important it is to divide community property, and to establish or defend against spousal support and child support. Rely on us to zealously argue for a fair and just outcome.

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