Skip to main content
Category

Domestic Violence Restraining Orders

In Domestic Violence Restraining Orders, Family Law Blog

How To Request a Restraining Order

Types of Restraining Orders in a Divorce

How To Request a Restraining Order

A judge in San Diego may issue a restraining order as an official order prohibiting a particular action. An individual may seek a restraining order for various reasons, including copyright infringement, domestic abuse, harassment, legal disputes, and employment disputes. Anyone who applies for a restraining order must first send a request to their local court, which will determine the merit of the request by examining the evidence submitted.

Although restraining orders are limited in their duration, restraining orders are typically used as a form of immediate relief if  the petitioning party requires instant action to prevent harm or harassment. Although a permanent order can be possible, this usually takes months to to allow the parties time together evidence for a  full formal hearing. However, the process of obtaining a temporary order can be completed in a matter of days.

What to do First When Requesting a Restraining Order

Your first step in obtaining a restraining order will be to speak to an attorney who is experienced in the area, usually one specializing in family law. If you are concerned about an ex harassing you, or a spouse, then a family attorney could help to handle the details of a restraining order for you as well as the custody or divorce aspect of your case.

Next, you will need to gather as much evidence as possible to support your case. Remember that simply presenting a ‘He said’ or ‘She said’ case in court can be problematic, and ideally you should have more than just an accusation that an individual did something requiring a restraining order. Evidence can be gathered in various forms, you might for example, use threatening texts or emails, pictures, documents or even recordings of harassing phone calls. Police reports or witness statements can also be used to support your position.

Preparing a Request for a Temporary Restraining Order

This is usually a step that you should take with your family law attorney. In simple terms, you will need to prepare a document that will inform the judge what you want, and the reasons why you want it. Usually, these documents come in two types, the first, standard option simply asks for a restraining order temporarily and sets a date to have both parties appear before a judge.

The other document requests an ex parte restraining order, and this refers to a situation wherein only one party attends the court to ask the judge for an order. Typically, if a judge grants an individual an ex parte order, she or he will then set a hearing within fourteen days, allowing the other party to give their side of the story.  There may be children involved in this request, if there are a child visitation request also needs to be included with the request.

What Happens Next

The judge will review your paperwork that day and decide if a temporary restraining order should be granted or denied.  Whether it is granted or denied, a hearing will be set where both parties will have to appear at that hearing.  A notice will be officially served to the opposing party providing them with the date that they must attend the hearing. In this case, your attorney will use a process server that will handle the issue for you, meaning that you should not be asked to serve the notice on anyone’s behalf. Beyond this, all that will be left for you to do is to attend the hearing. Dress smart and do your best to stay calm throughout the proceedings, even if you feel yourself getting emotionally involved. The more clearly you can explain your position, the better chance you have of the process going smoothly.

••Minella Law Group Can Help••

If you or someone you know is the victim of domestic violence and need assistance obtaining a domestic violence restraining order the qualified staff at Minella Law Group can assist you. For more information or to schedule an appointment, click the button below, or call us at (619) 289-7948. We look forward to helping you.

In Domestic Violence Restraining Orders

What is Domestic Violence?

Domestic violence has been called an epidemic in the United States and includes physical, sexual, emotional, and economic abuse. Each year over 12 million women and men in this country are victims of what’s referred to as “intimate partner violence.”

California is a no-fault state on divorce but there are instances where fault can be a factor, including a domestic violence conviction. Domestic violence can influence property division and child custody matters, too. It’s important to understand how California courts view domestic violence and how it is handled during a divorce case.

What is Domestic Violence?

In California, domestic violence as defined by the courts involves a minor or serious injury against a close family member or intimate partner. Under California’s Domestic Violence Prevention Act, special rules apply when dealing with domestic violence charges, including spouse and abuse and child endangerment.
“Violent actions” can include:

  • Physical and/or sexual assault.
  • Threats of harm, or threats to harm someone else.
  • Harassment and/or stalking.
  • Destroying the other person’s property.

Two people do not need to live in the same residence for domestic violence to occur. Any abuse by a spouse, former spouse, current or former cohabitant, someone the abuser has or is having a child with, or someone in a past or current dating relationship is considered a crime.

How the Courts View Domestic Violence

Not only is domestic violence considered a serious crime in California, it is aggressively prosecuted. Any violent or threatening act, even if the alleged abuser did not intend to harm the other person, can be grounds for prosecution under California’s domestic violence laws.

If police believe domestic violence has taken place they are mandated by California law to arrest the perpetrator. That is, if the officer has probable cause to think one person has abused a partner, spouse, or other family member, an arrest must be made regardless of gender or other factors like sexual orientation, and even if the person who was allegedly attacked says they do not want to press charges.

Domestic Violence Restraining Orders

In order to protect someone from physical abuse, harm, or threat of abuse or harm, courts will issue domestic violence restraining orders. There are four such orders in California:

Depending on which order is obtained, there will be actions the restrained person must comply with including not contacting the alleged victim, paying certain bills, moving out of a shared residence, and being denied the right to carry a gun. Violation of a restraining order comes with severe penalties.

Domestic Violence and Child Custody

Physical and legal child custody can be affected by domestic violence charges. California law has strict guidelines that determine how the law will apply in a specific case. In all cases, the courts strive to put a child’s safety first, devising a parenting plan that keeps everyone safe.

The Benefits of a Domestic Violence Attorney

If you or someone you know is facing domestic violence charges, or if you and/or your child are the victims of domestic violence, an experienced family law and criminal defense attorney can help you understand how the laws apply to your case. Talk to them about your concerns with respect to visitation, restraining orders, and other matters so they can fully represent your interests in court.

Close Menu