Sometimes a relationship is plagued by instances of domestic violence. Under California’s Domestic Violence Prevention Act, family law courts may issue restraining orders to prevent acts of domestic violence. This article examines restraining orders under the Domestic Violence Prevention Act.
What Is Domestic Violence?
California Family Code § 6211 defines “domestic violence” to include “abuse” against the following persons:
- A spouse or former spouse
- Current or former household residents
- Current or former significant others
- Someone with whom the party to-be -restrained had a child
- Children of either party
- Close relatives
What Acts Constitute “Abuse?”
California courts are authorized to enjoin a party from committing a broad range of abusive conduct, including physical attacks, threats, harassing phone calls, stalking, destroying personal property, and other behaviors that disrupt the other party’s emotional peace.
Ex Parte Restraining Orders
Emergency restraining orders to preventing domestic violence may be issued without notice to the party-to-be-restrained. This is also known as an “ex parte” order. Ex parte restraining orders must be supported by an affidavit (sworn statement) alleging sufficient facts to justify the court in issuing the restraining order before it hears countervailing arguments from the other party.
If a court is convinced that an irreparable injury would occur before it could hear the matter upon notice to the other party, it will grant the ex parte order. However, a hearing must eventually be conducted within 21 days from when the court issues an ex parte order, or within 25 days upon a showing of good cause. Furthermore, the restrained party must be personally served with notice of the restraining order petition at least five days prior to the hearing.
What Can Acts Can Be Restrained?
Among other things, the court may issue restraining orders prohibiting the abusive party from directly or indirectly contacting the other party. The restraining order can also exclude the abuser from the family residence.
A domestic violence prevention order excluding a party from the family residence must demonstrate:
- That the party who will stay at the residence is legally entitled to do so
- That the party being excluded has attacked or otherwise threatened the other party, their minor children, or others under their care
- That physical or emotional harm would result without the protection order
Effect on Child Custody Rights
Being subject to a domestic violence restraining order has the potential to impair their child custody rights significantly. California Family Code § 3044 establishes a presumption against awarding a party sole or joint custody of a child if they committed an act of domestic violence against the other party who was also seeking custody of the child.
Emergency Protective Orders Requested by Law Enforcement and Judicial Officers
If a police officer has reasonable grounds to believe that a child is in “immediate and present danger” of suffering abuse or being kidnapped by a relative or unrelated member of the household, a judicial officer may issue an ex parte emergency order against the abusive party. The officer’s belief must be based on a recent occurrence or threat of abuse, abduction, stalking or harassment. The officer who requested the protective order must serve a copy of it on the party to be restrained.
California gives law enforcement officers substantial latitude in enforcing the protective order. Under California Family Code § 6272, “a law enforcement officer shall use every reasonable means to enforce an emergency protective order.” If the individual enjoined by a protection order willfully violates it, they can be charged for a misdemeanor under California Penal Code § 273.6.
Quality Legal Advocacy for Sacramento Residents
At Bez Law Firm, P.C., our legal team led by Attorney Dena M. Bez has dedicated years of their practice to handling several divorce issues, including matters related to domestic violence restraining orders. If you are looking for reliable legal advice about a family law issue involving domestic violence, we are standing by to serve you and your family’s interests.
To schedule an appointment with Bez Law Firm, P.C., call us at (916) 512-8944 or contact us online today.