Domestic Violence Restraining Orders

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 (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.4^th 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.

 

Types of Restraining Orders

A restraining order can protect you from abuse or harassment during a separation or divorce. There are two common types of orders used in divorce: a domestic violence restraining order and a civil harassment restraining order. Each is used to target a different set of people.

1. A domestic violence restraining order is used to obtain protection from:

• A spouse, former spouse, domestic partner, person you have dated or lived with intimately, or person who is the other parent of your child, or
• Someone who is closely related to you, such as a parent, child, brother, sister, grandmother, grandfather, or in-law.

Restraining orders in California are granted to protect you from abuse, which means causing, attempting to cause, or threatening bodily harm or sexual assault, or molesting, stalking, or striking you. Continue Reading