Domestic Violence Restraining Orders
In California, the court is authorized to grant temporary domestic violence restraining orders without notice to the other person and without a hearing, based upon a written declaration by an alleged victim that satisfies a judge that it meets a standard of reasonable proof of “a past act or acts of abuse.” “Abuse” is broadly defined, including a range of acts that include:
- Sexual assault
- Intentionally or recklessly causing, or attempting to cause bodily injury
- Placing a person in reasonable apprehension of imminent serious bodily injury to that person or another
- Accessing, reading and publicly disclosing a spouse’s confidential emails
The court order prohibits the respondent from engaging in various forms of harassment, including:
- Physical violence (attacking, striking, battering)
- Sexual misconduct (sexually assaulting)
- Stalking and threatening
- Identity theft (credibly or falsely impersonating)
- Annoying phone calls and other forms of contact
- Damaging or destroying personal property
- Disrupting the peace and quiet of the other party and their household members
Additionally, the court may include other specific individuals in the order, such as family or household members, if good cause is shown.
Controls And Restrictions In Restraining Orders
After a hearing, the court may issue a long-term restraining order for up to five years in duration and may also order the restrained party to participate in a batterer’s program. The court can also make an order for the payment of attorney fees and costs incurred by the prevailing party. Domestic violence can lead to criminal prosecution apart from restraining order issues in family court. Domestic violence restraining orders can include, among other things:
- Exclusion from a residence
- Orders to stay away from the alleged victim
- Child custody and visitation orders
- Orders precluding the ownership, possession and purchase of firearms or ammunition
- Control of property such as automobiles
- Restraints on conduct related to property
A domestic violence restraining order may also seriously affect child custody and visitation orders as well as spousal support orders.
Consequences For Those Accused Of Domestic Violence
Domestic violence issues should be taken very seriously for many reasons, including the need for protection by an abused spouse as well as serious consequences for an alleged perpetrator. Domestic violence issues can cause serious financial consequences for both parties; it also has serious consequences for the parties’ children. If the court finds that a party has perpetrated domestic violence within the past five years against the other party, the child, the child’s siblings or a current spouse, there is a rebuttable legal presumption that awarding sole or joint legal or physical custody to the perpetrator would be detrimental to the child.
Domestic Violence In Divorce Proceedings
When there are domestic violence issues raised in a divorce case, the parties’ legal expenses may be much higher and financial issues may be more difficult to resolve. At a minimum, victims and alleged perpetrators should consult an experienced family law attorney to understand their rights and all of the potential implications involved with domestic violence restraining orders. If there are criminal charges, an alleged perpetrator should consult a criminal attorney.
Frequently Asked Questions About Domestic Violence Restraining Orders
Here are some common questions and answers to help you better understand domestic violence restraining orders in Santa Clara County and across California:
What is the process for obtaining a restraining order in California?
To obtain a restraining order, you must file a request with the court, providing a written declaration detailing the abuse you’ve experienced. If the judge finds reasonable proof of past abuse, a temporary restraining order can be issued without prior notice to the other party. A hearing will then be scheduled where both sides can present evidence, and the court will decide whether to issue a longer-term restraining order.
What legal protections are available for domestic violence victims?
Victims of domestic violence in California have access to several legal protections. Temporary and long-term restraining orders can prevent the abuser from contacting or coming near the victim, exclude them from shared residences and restrict their access to firearms. Additionally, victims may receive orders related to child custody and visitation, ensuring their safety and well-being as well as that of their children. Legal assistance and advocacy services are also available to help victims navigate these processes.
How long does a restraining order last in domestic violence cases?
A temporary restraining order typically lasts until the court hearing, which is usually scheduled within a few weeks. If the court issues a long-term restraining order after the hearing, it can last up to five years. The duration may vary based on the specifics of the case and the judge’s decision. Victims can request an extension if they continue to feel threatened or unsafe.
Contact The Santa Clara County Domestic Violence Attorneys At Erickson Family Law LLP
If your life has been disrupted by domestic violence, contact us as soon as possible. These situations are often volatile and unpredictable. Contact us now by calling 408-840-2393 or filling out our online contact form.