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Domestic Violence Restraining Orders

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Must Ask Questions Before Filing a Restraining Order

By | Domestic Violence Restraining Orders | No Comments

Divorce often brings to light significant difficulties that may be happening in a marriage, especially abuse. If you find yourself in an abusive situation, a divorce restraining order can literally save your life. The State of California takes requests for domestic violence restraining orders very seriously, as they can be used to:

• Prevent individuals from keeping a gun or ammunition.
• Prevent an abusive partner from going near you and/or others.
• Require the restrained party to obey child support and custody instructions.
• Order the restrained party to move out of a residence.

Should You Obtain a Divorce Restraining Order?

California law defines abuse as any act that puts you, your children, or another person in immediate fear of injury, as well as any act that causes harm to you or your property. If such harm exists, you can file a request for an order to keep the abuser away. Divorce-related restraining orders work differently than those in other situations, as you may file the request through your existing family law case.

A qualified family law attorney can help you fill out and file your restraining order paperwork. The forms are also available on the California Courts website. Depending on your circumstances, you may need to fill out several different forms. Here are the questions you need to consider before filing for a restraining order.

Are you asking for protection for other family or household members?

Has the person made threats against people other than you? The court may grant a restraining order that includes other “protected persons.” If you believe the person you are asking to be restrained could harm someone else related to or living with you, that information should be included in your request.

What is your relationship to the person you’re seeking protection from?

To qualify for a domestic violence restraining order, you and the person you want to restrain must be at least one of the following: 

  • Married or registered domestic partners.
  • Divorced or separated.
  • Dating or previously dated.
  • Currently or previously living together.
  • Parents together of a child.
  • Closely related, such as a parent, child, sister, brother, grandfather, grandmother, or in-law through a current marriage.

What type of order(s) are you asking for?

There are several requests you can make of the court, including personal conduct orders, stay-away orders or move-out orders. You may also ask the court to grant you the right to record communications between you and the other person, ask for sole possession of a pet, and request that the person be ordered to sell, or otherwise give up any guns or firearms in his or her possession.

Speak with an Attorney

An experienced family law attorney can help you file your request for restraining order. The court takes one day to determine if you should be granted a temporary restraining order, which is valid for up to three weeks. It then sets a date within those three weeks for a hearing on your permanent restraining order. An attorney can also help you compile evidence for that hearing, including police reports, medical records, photographs, and emails. Witnesses may also be called.

After the evidence is presented, the court will decide whether to issue a permanent restraining order. If issued, a permanent restraining order can be in effect for up to five years, at which time you may request the court to renew it. A restraining order has huge legal, financial, and emotional ramifications for the party it is issued against. It should not be taken lightly and should only be considered if the circumstances absolutely warrant it.

Restraining Order in the Military

By | Domestic Violence Restraining Orders, Family Law Blog, Military Divorce, Military Divorce

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

By | Divorce, Domestic Violence Restraining Orders

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

By | Domestic Violence Restraining Orders, Family Law Blog

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

By | 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

By | Domestic Violence Restraining Orders

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.

 

Getting a Restraining Order in a California Divorce

By | Domestic Violence Restraining Orders | No Comments

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. Read More