Family Law in the State of California: An Overview of Restraining Order Provisions
In many states, including the State of California, restraining order are typically filed in the Family Law Court. There are also Emergency Protective Orders which are found commonly in criminal cases, and civil restraining orders filed and processed within the civil division of the courts. This article will cover the more common Domestic Violence Restraining Orders processed in the family law division.
When a victim files a request for a restraining order, the court mandated order would restrict the abusive individual from performing certain acts, if the order is granted. The process to have a request approved and ordered varies on the severity of the incident and details surrounding the abuse/incident. Typically when filed, court clerks and judges will review the information and set a hearing. If they determine the abuse so severe they can immediately approve the order in temporary form until the hearing. The respondent always has opportunity to respond and defend themselves against these claims which is why a hearing for review is set. Since the court aims to protect victims, the temporary hearing is usually set same or next day, with a standard hearing about 35+ days later. The other parent (respondent) is required to be notified of both. The temporary hearing, due to time, can usually be notified upon the respondent by phone. The standard hearing is where they are required to be served in person with the filed documents. This is where they can respond with their accounts and supporting information/documentation.
If granted, restraining orders, may be upheld for up to three years but in certain cases, they may be made permanent. Additionally, restraining orders will vary depending on each case, making the order to include specific provisions. If there is an open family law case (divorce, separation, custody…) the orders can be held within the same case and case number. In these situations other orders may be included in the order such as property control or restraint as well as additional protected persons (typically minor children).When no other case is open and active, the restraining order would be its own individual case.
It is also important to note, that if such orders are granted, they will be placed into “CLETS” system which is a network of records available to law enforcement. This helps law enforcement during traffic stops and calls to identify potential issues of safety.
If you or someone you know is need of a restraining order in the State of California with respect to domestic violence (domestic meaning a family based relationship), it is likely that the entire ordeal is already stressful and traumatic. Consider speaking to a knowledgeable family law attorney that has experience in dealing with domestic violence restraining orders. A practiced attorney will provide an overview of the available legal options as well as making sure that the order is available when needed.
Understanding How a Restraining Order Can Be Used for Protection
With a valid restraining order, a court can order the appropriate law enforcement agency to protect the victim and his or her immediate family. Depending on the facts surrounding the case, the protection order can include the following provisions:
- No Contact
- This will prohibit the accused from texting, calling, stalking, emailing, hitting, attacking, or disturbing the protected victim.
- Peaceful Contact
- Under a peaceful contact provision, the abuser may be permitted to communicate with the victim so as long as it is done in a peaceful manner. The communication is only to be held for limited reasons that may include the transfer and care of a child.
- Stay Away Provisions
- Under this provision, the accused will be ordered to stay a minimum number of feet away from the protected individual. Further, depending on the case, the accused may also be ordered to stay away from the victim’s school, job, home, or car. The distance required to stay away can vary by region.
- Move Out Provisions
- In the event that the abuser and the victim share a residence, the accused will be court ordered to move out of the residence.
- An accused may be forced to surrender his or her guns. He or she can also be prohibited from purchasing firearms.
- Depending on the case, the abuser may be obligated to attend counseling courses such as anger management or batterer’s intervention.
Defense Against Restraining Orders
As with other areas of the law in California, simply a request or even a temporary restraining order is not the end for a respondent. The process is set so that both parties have the opportunity to be active in the case and submit their accounts and supporting evidence. Just because a temporary order has been made does not mean it will be up-held after the hearing. The initial documents supporting the initial request can be found by the Judge and court to be false, or embellished, leading to a denial of a permanent order. It is important that respondents take action to defend against claims when they are false or misleading. The court provides the opportunity to respond, but doing nothing almost always will result in negative outcome.
Responses are time sensitive and as soon as a restraining order request is filed, action can be taken. An attorney can obtain all filed documents and work with you to determine the defense in your case. It is always easier to prepare a proper defense when time is ample. The restraining order process in family law court can be as soon as 6 weeks to permanent order, so there is no time to waste to fight.
The Bottom Line: Seek Legal Advice
Under any circumstance, domestic violence should never be endured. If you or someone you know is suffering a dangerous situation, it is important to contact law enforcement straight away. If there is a need for a restraining order, it is a good idea to seek the legal advice of a family law attorney who can provide the necessary guidance and support.
The attorneys at Milligan, Beswick, Levine & Knox, LLP., have extensive experience in the field of domestic violence restraining orders. They are dedicated to championing for the legal rights of victims suffering from domestic abuse.