How can I get a Domestic Violence Restraining Order Against my boyfriend/girlfriend husband/wife?
In California, if you have been abused (see below) or been threatened with abuse, you can ask a court to protect you and order the other person to stay away from you (and other terms).
Who can apply for a Domestic Violence Restraining Order?
For a DV Restraining Order (DVRO), you must have a relationship with the other party, such as:
Have a child together
Dated, or previously dated
Lived together or previously lived together; or
Are related by blood or law, meaning: mother or mother-in-law, father or father-in-law, child or stepchild or legally adopted child, grandparent or grandparent-in-law, sister or sister-in-law, brother or brother-in-law, stepparent, daughter or son-in-law, (all in-laws must be through a current marriage per 6211 FC)
How is Abuse Defined for a DV Restraining Order?
Abuse for purposes of a Restraining Order can be mental or physical, actual or threatened. The Family code (6211 FC) defines abuse as:
(1) To intentionally or recklessly cause or attempt to cause bodily injury.
(2) Sexual assault.
(3) To place a person in reasonable apprehension of imminent serious bodily injury to that person or to another.
(4) To engage in any behavior that has been or could be enjoined pursuant to Section 6320. That code refers to: (a) The court may issue an ex parte order enjoining a party from molesting, attacking, striking, 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 653m 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.
As you can see, there is a significant difference in the definition of abuse for purposes of getting a DV TRO than that of a criminal domestic violence violation.
How do I apply for a DV Restraining Order in San Diego?
In all San Diego Courts (Vista, Downtown, El Cajon and South Bay), the person seeking a DVRO is the Petitioner. To apply for a Restraining Order, the Petitioner must complete a number of forms (of course our firm would be happy to prepare these), and submit them to a judge in the nearest court to your residence. The court will review your moving papers and declaration ex parte, meaning without hearing from the other side. If the court feels you have established a prima facie or minimum or basic showing of that you have been abused, or threatened abuse, and you have a relationship to the Respondent (person you want restrained), then the court will issue a Temporary Restraining Order, usually the same day the petition is submitted, and will set a date within 21 days for a hearing on the order.
The Temporary Restraining Order (TRO) must then be personally served on the Respondent for it to be enforceable. The Petitioner cannot serve the Order, someone over 18 not a party to the action must serve it. If the Petition alleges violence, the Sheriff's Office will attempt service for free. A blank copy of a response is required to be served, along with the Petition and court orders. Proof of personal service is required to established at least five (5) days prior to the hearing.
What Types of Orders are in a TRO?
The court can order a Respondent to stay away from the Petitioner, his/her home, work, vehicle and place of business. The order can allow for a temporary “Kick Out” of the respondent if there are allegations of physical abuse, and the parties reside together, and each has a right to occupy the residence. If the parties share children, temporary custody and support orders may be made pending the hearing as well.
What Happens at the DV Restraining Order Hearing?
If the Petitioner has filed a valid proof of personal service, they will be required to present evidence that establishes by a preponderance of evidence (51%) that the related party abused, attempted to abuse, or disturbed their peace (see definition of abuse, above). If the Respondent did not file a response, and did not show up in court, the Petitioner still has the burden of proof before the Court can issue a Restraining Order (for up to 5 years). If Respondent appears, they can either request a continuance or move forward with the hearing. The court will hear from both sides and witnesses, and will usually render a ruling that day. If the matter is expected to take more than twenty minutes, the court may consider it a “long cause” matter and either trail to the end of the calendar or continue the hearing to a future date.
What Evidence can be Used to Prove a Restraining Order is Necessary?
Believe it or not, even in the same County (San Diego), judges differ in the types of evidence they will receive at hearing. Some judges prefer all evidence to be submitted in written format, signed under penalty of perjury, while others expect live witnesses, subject to cross-examination. There is no clear published opinion as to whether hearsay should be admissible at a DVRO hearing, but some courts believe it should be excluded unless a viable exception exists. Having an experienced attorney with local knowledge of each judge's preference can be critical to your success in prevailing at a Restraining Order hearing. Independent, third-party witnesses, as well as documentary and video proof of abuse are very effective ways to prove your case.
What Kind of Orders Can the Court Make After a DVRO Hearing?
After the Court receives all evidence at the hearing, it will render a decision, which can include: issuing or denying the Restraining Order for one to five years; the court can add additional protective orders to protected parties and pets, grant possession of cell phones, and if the parties are married, can establish support and custody orders if there are minor children. A DVRO can be considered a "poor mans/woman's divorce", because it can provide a quick, cheap vehicle to obtain support and custody orders without extensive litigation between the parties. The court can also order a restrained party to attend and complete a Batterer's Intervention (DVRP) program, and can order attorneys fees to the prevailing party after an additional noticed motion.
Can a Judge Issue Mutual Restraining Orders?
The only way for a court to have jurisdiction to issue mutual restraining orders is if the Respondent also filed a Cross-Complaint also seeking a restraint on Petitioner. Absent the written request prior to a hearing, and notice to the other party, the Court will not issue mutual Restraining Orders.
Because DVRO's can have a serious impact on Support, Custody and Second Amendment issues, please consult with an experienced law firm such as ours to know your rights, risks and benefits when dealing with Restraining Order issues.
Call Carlsbad Vista Criminal Attorney Joel Bailey at JB Law 760 643 4025