Legal Representation In Divorce And Separation For Over 40 Years
attorneys Mark and Matt Erickson
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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

Abuse also includes other conduct that does not require an assault or causing a physical injury. The court may issue a temporary restraining order, without notice, “enjoining a party from molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, credibly impersonating, falsely impersonating, harassing, telephoning, including, but not limited to, making annoying telephone calls, 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.”

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 to an alleged perpetrator. Domestic violence issues can cause serious financial consequences for both parties. Domestic violence 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 siblings or against 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.

Contact The 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.