Domestic Violence Restraining Orders

What to Do About Domestic Violence During COVID-19


While Coronavirus has changed our lives with sheltering in place, restrictions on our day to day activities, and causing health concerns for many people, staying home has created unintended consequences including a rise in domestic violence.

With increased stress and potential increased substance abuse, this can lead to increased risk of domestic violence.   

To victims of domestic violence, these restrictions can be life threatening.  Alarmingly, since the start of the pandemic, there has been a rise in reports of domestic violence.  There are no escapes or ways to cool off and people are forced to quarantine together which can make an already dangerous situation even more dangerous.

During this shelter in place, many victims of domestic violence may be too scared to seek help or with so many closures of public resources and a limited access to justice, victims of domestic violence may feel as though there is nowhere to turn.

The San Diego District Attorney’s office has created special resources online in both English and Spanish for victims to seek help. Although San Diego Superior Court remains closed for most functions, all four courthouses in the county remain open Monday-Friday for restraining order requests.

The court will review your request remotely along with any evidence you submit and issue a restraining order if the court finds you have met your burden of proof. The restraining order can include move out orders forcing the domestic violence perpetrator to leave the residence, so you are protected.  The restraining order can also include temporary custody orders, if children are involved, and orders for one party to continue making monthly financial payments such as cell phone bills or rent.

If you are a victim of domestic violence or are in immediate danger of further violence, the attorneys at Minella Law Group, can help.  We offer remote services to meet with you and prepare your case for filing, the shelter in place restrictions do not prevent us from continuing to serve our clients to the best of our abilities.

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:

  • Domestic Violence Restraining Order
  • Workplace Violence Restraining Order
  • Civil Harassment Restraining Order
  • Elder or Dependent Adult Abuse Restraining Order

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.

Restraining Order Rules in California


Most people are aware that domestic violence victims and people facing civil harassment can be issued restraining orders to protect them from their aggressors. What many may not know is the process of filing for these orders, the burden of proof needed, when (or if) to get one, and the restraining order rules in California.

What is a Restraining Order?

Restraining orders (or protective orders) are court orders that can protect you from physical or sexual abuse, harassment, stalking, or threats. When you take out a restraining order, you become the “protected person” and the one the order is against becomes the “restrained person.” “Protected persons” are any other people included in and protected by the restraining order.

What Do Restraining Orders Do?

Restraining orders can include the following:

Personal Conduct Orders

These orders stop specific acts against you or anybody else named in your restraining order. The person restrained is ordered to stop or refrain from the following:

  • Contacting, calling, or sending any type of messages
  • Sexually assaulting
  • Attacking, striking, or battering
  • Harassing
  • Stalking
  • Destroying personal property
  • Threatening
  • Disturbing the peace of all protected persons

Stay Away Orders

These orders keep the restrained person a stipulated distance away from the person protected, their place of residence, their place of work, their child’s schools and places of childcare, their vehicles, and any other essential places they frequent.

Residence Exclusion (Move-Out or Kick-Out) Orders

These orders require the restrained person to move out or leave your place of residence immediately and take only their personal belongings and clothing until the court hearing. These orders are only issued in domestic violence or dependent adult/elder abuse cases.

Kinds of Restraining Orders:

California has the following four kinds of restraining orders:

Domestic Violence Orders:

The most common reason for getting a restraining order against someone is when they violate domestic violence laws. This includes harassment, burglary, terrorist threats, assault, criminal trespass, stalking, kidnapping, lewdness, false imprisonment, criminal mischief, or sexual assault.

In California, your abuser must be a spouse, former spouse, boyfriend, girlfriend, live-in companion, or a parent of your child to meet the state’s definition of domestic violence.

You can file for these orders if someone has abused you with whom:

  • You have a close relationship with (e.g., Married, registered domestic partners, separated, divorced, dating, used to date, live together, used to live together as more than roommates, or have a child together)
  • You are closely related (e.g., parent, child, sibling, in-law, etc.)

Elder or Dependent Adult Abuse Orders

You can file for these orders if:

  • You are 65 or older, or
  • You are aged 18 to 64 years and have physical or mental disabilities that keep you from doing normal activities of protecting yourself; and
  • You are a victim of physical or financial abuse, neglect, abandonment, physical or mental mistreatment, or deprivation of essential things that you need by your caregiver.

Civil Harassment Orders

You can file for these orders if someone harasses, stalks, abuse, or threatens you but you are not as close to them as is required under California domestic violence cases. For instance, a roommate, neighbor, or distant family members.

Workplace Violence Orders

As an employer, you can file for these orders to protect an employee who has suffered severe harassment, stalking, violence, or credible violence threats at the workplace.

Types of Restraining Orders

There are three types of restraining orders:

  • Emergency Protective Order (EPO): Only a law enforcement officer can ask for an EPO by calling a judge directly. They can last up to seven days, which is enough time to file for a TRO.
  • Temporary Restraining Order (TRO): These orders typically last for 20 to 25 days, which is enough time until a scheduled court hearing date.

Permanent Restraining Order: A judge issues these orders during a court hearing after they are satisfied that you need protection. They last up to five years, and you can ask for another restraining order when yours runs out.

If you need help or want to learn more about restraining order rules in California, you can seek out the services of a family law attorney, local legal aid agencies, shelters, or domestic violence help centers.

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Restraining Order in the Military

Restraining Order in the Military

A common question I get from clients has to do with how to handle a restraining order in the military and how it affects an enlisted member of the military. First of all, it can affect your ability to get into the military as if you have a restraining order you cannot own or possess any firearms. Depending on your role, it may make you ineligible to enlist.

How Can it Affect Me?

If you are already in the military and you are a restrained party under a restraining order it is important that you seek counsel during your hearing. A CLETS restraining order against you comes with criminal and civil penalties.  CLETS stands for California Law Enforcement Telecommunications System.  The restraining order will get put into the system and when your name is run it will be listed that there is a restraining order against you. CLETS contains information about restraining orders as well as details about the names of the protected person and the restrained person.  They do this so police will be aware that there is already a domestic violence issue and they will know how to respond to a call.

Having a CLETS restraining order means that you cannot possess a weapon or firearm.  If part of your employment requires this, you have the potential to lose your job.  Additionally, a CLETS restraining order will show up on a background check which can ruin your chances of being allowed to enlist depending on the security clearance that you need to do your job.

What Can I Do?

If you are in the military and facing a Domestic Violence Restraining Order, you need to hire an attorney to assist you in your defense.  The attorney can talk to the protected party and make sure they understand the implications of a restraining order and that it can affect support.  Maybe an agreement can be reached outside of court.

If the protected party still wants a restraining order, you need to prepare an adequate defense as this is a very serious issue.  Losing at the hearing can have the potential for you to lose your position.

Minella Law Group Can Help!

If you are in the military and facing 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.


Types of Restraining Orders in a Divorce

The Types of Restraining Orders: DTRO & ATRO what is the difference? 

Anyone who is considering filing for a restraining order, first needs to know what the term implies. In some states a restraining order can be referred to as a protective order, and it dictates a legal order that has been issued by the local court to offer protection for a victim of domestic abuse, or abusive activities. A restraining order may command that the abuser stays away from the protected person, allowing no form of contact or disturbance of their peace. In some cases, this can mean that the abusive individual is removed from the family residence that they previously shared with the victim.  In San Diego there are many types of restraining orders available to you when you are going through a divorce.

The difference between a temporary restraining order, and order after hearing

The primary difference between a temporary restraining order, and one that is issued after a formal hearing, is that a temporary restraining order may follow an ex parte appearance, meaning that it was issued by one party (typically the victim) while the other (the aggressor) was absent. A temporary restraining order may be given to restrain the aggressor from engaging in further abusive activities until a proper hearing can be held. The aggressor may then be served with an order to show cause, which would inform them of the time and date a hearing will be held to determine whether a more permanent order should be given. An order after hearing is just that, it is an order that is issued after the judge gets to hear from both parties in the case.   This order will stay in effect until there is a new court order OR until an expiration date on the order is reached.  A restraining order after hearing is what is issued after your hearing is heard on your temporary order if the judge feels there is sufficient evidence for an order after hearing.

Securing a temporary restraining order

In some cases, requesting a temporary restraining order can lead to the order being issued on the very same day. It can then remain in effect until the date of the scheduled hearing, where a further decision will be made. Depending on where you live, the order to show cause hearing will typically take place between two or three weeks after the issuance of the initial temporary order.

In order to have a more permanent order issued, the victim will typically need to show evidence that the aggressor was abusive or violent towards them, or their dependent in some way. Whether the abuse was emotional, or physical, it may still carry the same weight before a court.

Automatic temporary restraining orders and divorce

ATROs, or automatic temporary restraining orders, are regularly used in divorce proceedings as a form of legal nicety. Rather than implying that some sort of abuse has taken place these restraining orders are put in place when a divorce proceeding is filed with the court and they are automatic.  Neither party has to apply for these restraining orders.   ATROs are used as a measure to maintain respect between divorcing spouses and limit the actions and freedoms that either spouse may have had before. An ATRO will prohibit either spouse during a divorce proceeding from:

  • Destroying or hiding assets
  • Changing bank accounts
  • Selling or transferring property
  • Modifying the beneficiaries on policies such as wills, life insurance, and health insurance
  • Borrowing or selling insurance that has been taken out for the other spouse
  • Removing the children from the county of the state

Basically, an ATRO will prevent either party in a divorce from changing the financial status of the marriage once proceedings begin.  Just as the word ‘automatic’ is regularly used in the title, this does mean than ATRO will be automatically included within every divorce petition. In fact, the ATROs warning is on the back of every summons advising the parties of what actions cannot be taken when a divorce is taking place.  You may need to speak to your lawyer about what type of conduct would violate the ATROs in your divorce case. This is a serious violation and can subject you to serious financial penalties.

Minella Law Group Can Help!

If you or someone you know needs assistance with a 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.

How To Request a Restraining Order

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.

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Obtaining a Domestic Violence Restraining Order

Obtaining a Restraining Order as a Victim of Domestic Violence

In San Diego, it is possible to obtain a domestic violence restraining order from the legal judicial system, which will effectively prohibit an individual from performing any actions that may harass, or harm you in any way. Although it is intended to protect the individual for whom it is taken out, a restraining order is a civil order, meaning that it will not provide an abuser with a criminal record unless they violate the order.

Who can Apply for a Domestic Violence Restraining Order?

In some cases, domestic violence restraining orders are issued by judges in particularly heated legal situations, such as a custody battle or ongoing divorce that is causing a potentially dangerous or threatening situation between certain individuals. However, victims of domestic abuse, or violence can also obtain a restraining order if they have been the subject of abuse by their spouse, family member or any previously present individual, so long as the victim is either an emancipated minor or over the age of 18. The term ‘domestic violence’ can refer to any of the following acts that have been committed against a victim:

         o   Sexual assault

         o   Assault

         o   Terrorist threats

         o   Stalking

         o   Kidnapping

         o   Homicide

         o   Criminal trespass

         o   Harassment

        o   Criminal sexual contact

        o   Burglary

        o   Damaging personal property

What can a Domestic Violence Restraining Order do for Victims of Domestic Violence?

As a victim of domestic violence, an individual can request a judge to sign a document called a ‘Domestic Violence Restraining Order’, which demands that the abuser obey the law and follow rules regarding what they can, and cannot do. For example, the abuser may be required to have no contact with the victim either at home, via phone or email, at work, or anywhere else you might ask the court to place on the order.

The order may also work to protect other individuals within your family if you believe that they are at risk. The court could demand that the abuser in question leaves your family home, shared apartment, or domicile in which you live, even if that particular piece of real estate is in the abuser’s name.

In San Diego, a court may rule that the abuser must pay any financial costs that may have arose as a result of the abuse. For example, any medical or dental treatment, household bills that are immediately due, loss of earnings or expenses caused by moving home. The judge may also demand that your abuser pays for any fees that must be paid to an attorney on your behalf as a result of having to seek a domestic violence restraining order.

How Long will a Domestic Violence Restraining Order Last?

When you initially file to obtain protection from the law, it will only be on a temporary basis. The order that you receive will indicate a specific date at which point you must return to the court alongside the abuser to endure a formal proceeding. If your abuser does not arrive as expected at the hearing, then you may find that the judge either enters a final order if you have proof as to the abuser being served a notice to appear, or continue the temporary order until the individual can attend.

Remember, the courts will take domestic abuse very seriously, and you will not be asked to serve papers to the abuser on their behalf. So you do not have to worry about that. The local sheriff will serve the restraining order as soon as possible so they are aware that there is an order in place.  Once they have been served, they are on notice and must obey the orders or they can be arrested.

Minella Law Group Can Help!

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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 above, or call us at (619) 289-7948. We look forward to helping you.

Domestic Violence Restraining Order Renewals

Domestic violence restraining order renewals (DVTRO’s) should not be taken lightly as criminal and civil penalties attach to the orders.  During the existence of the orders the restrained party needs to adhere to the orders to make sure there have been no violations.  Having a domestic violence restraining order on your record can seriously impact your life.  A DVTRO will show up on background checks and might prevent you from getting a job or coaching a sports team.  If the restrained party needs to cross the border, this can cause detainment as well as a more thorough search of belongings.  Most importantly, the restrained party cannot possess any firearms while there is a DVTRO.  A restraining order can last up to five years, however upon the expiration of the order the protected party can file a request for a  Domestic Violence Restraining Order Renewals up to three months before the expiration of the order.  The judge will consider their request and has the authority to grant a permanent restraining order which would be in existence until further court order.  The potential is there for the DVTRO to remain in place for the restrained party’s entire life!

Can I Contest A  Domestic Violence Restraining Order Renewal?

Absolutely! California Family Code § 6345 states “In the discretion of the court, the orders may be renewed upon the request of the party, either for five years or permanently, without a further showing of abuse since the issuance of the order.  If the restrained party does contest the renewal, the protected party is not entitled to a renewal merely due to desire. Family Code § 6345 does not provide the trial court shall automatically renew the existing protective order, it only states the court may do so in the proper discretion of the court.   In exercising its discretion, the court must inquire beyond only the petition party’s subjective desire to have the protective order extended.  Just because a judge found sufficient grounds to grant a protective order three years earlier does not necessarily mean sufficient grounds remain.

What Does the Court Examine When Determining Renewal?

In a 2004 California Court of Appeals case Ritchie v Konrad (2004) 115 Cal.App.4th 1275, the court laid out the factors the court considers when determining whether or not to renew a DVTRO.  Here are the factors:

  1. A trial court should renew the domestic violence prevention restraining order, if, and only if, it finds by a                preponderance of the evidence that the protected party entertains, a reasonable apprehension of future abuse.
  2. The existence of the order itself often will be less telling than the facts supporting its issuance. ,The trial judge ordinarily should consider the evidence and findings on which that initial order was based in appraising the risk of future abuse should the existing order expire.
  3. It is relevant to the court to examine any significant changes in the circumstances surrounding the initial protective order as it may be that the opportunity and likelihood of future abuse has diminished to the degree that they no longer support a renewal of the order.
  4. If the abuse is not physical, it is also relevant to consider the burdens the protective order imposes on the restrained party.

 Who’s Burden Is It?

The burden of proof is on the protected party to prove to the court by a preponderance of the evidence that there is a reasonable apprehension of future abuse. It should be noted that the burden is very low.   The protected party only has to demonstrate it is more probable than not there is a sufficient risk of future abuse to find the protected party’s apprehension is genuine and reasonable.

If the protected party can meet their burden of proof, the restrained party will have to show there is NO reasonable apprehension.  This is done by demonstrating the factors the court can consider do not prove a reasonable apprehension.  For example, have the restrained and protected parties moved on with their lives so far that the opportunity and likelihood of future abuse has diminished to the degree they no longer support a renewal of the order?

Minella Law Group Can Help!

If you need assistance with a  Domestic Violence Restraining Order Renewal 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.