Domestic violence is an all-too-common situation in the United States. If your spouse is dangerous, what steps can you take to prove that to the court? This blog will talk through what’s necessary to obtain divorce restraining orders.
Under the Domestic Violence Prevention Act (DVPA) in California, set forth in Family Code Sections 6200-6409, domestic violence is abuse, as described in Section 6203:
(1) To intentionally or recklessly cause or attempt to cause bodily injury.
(2) Sexual assault.
(3) To place a person in reasonable apprehension of imminent serious bodily injury to that person or to another.
(4) To engage in any behavior that has been or could be enjoined pursuant to Section 6320.
(5) Abuse is not limited to the actual infliction of physical injury or assault.
Further behaviors that “could be enjoined” pursuant to Section 6320(a) are as follows:
“…molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, credibly impersonating as described in Section 528.5 of the Penal Code, falsely personating as described in Section 529 of the Penal Code, harassing, telephoning, including, but not limited to, making annoying telephone calls as described in Section 653m of the Penal Code, destroying personal property, contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party, and, in the discretion of the court, on a showing of good cause, of other named family or household members.”
If you feel you are being abused by your spouse or domestic partner, you can take steps to protect yourself by obtaining a Domestic Violence Prevention Order (DVPO), commonly known as a restraining order.
How to Start the Process
The first steps to obtaining divorce restraining orders is to gather the facts and evidence you have of the abuse. This may include:
- police reports or records
- witnesses who have seen the abuse and who can testify
- notes, emails, text messages, phone messages, letters you have kept
- your own recollections and true version of the events that have harmed you
Remember, the abuse does not have to be physical to be enjoined. If you suffer emotional abuse that is every bit as harmful as physical abuse, and could include such things as being controlled financially, being yelled at and belittled, being isolated by the abuse, being cut off from family and friends, you may consider divorce restraining orders. When your abusive spouse has done any of the things described in Sections 6203 and 6320(a) above, you can seek a restraining order.
Generally, the first thing you do after you prepare your paperwork is to submit the forms to the court without notifying the other person you are doing so. This is to protect you and any family members who may be protected by your requested orders.
The court does not charge any filing fees for domestic violence cases. Pending the first court hearing, the court may issue a temporary restraining order, which you can have personally served on the abusive person, or you can have a law enforcement officer do this for you. A law enforcement officer who has a copy of the restraining order on California’s Law Enforcement Tracking System (CLETS), which occurs as soon as the order is sent to the Sheriff or Police Department where you file, can also notify the restrained person of the order by phone. This has the same effect as personal service.
How to Address Abuse
Once the other person is served and both parties attend the court hearing, the judge can decide to grant the protective orders or divorce restraining orders, in full or in part, or not at all. You may want to have an attorney guide you through this process as it is complicated and emotionally stressful.
If the court does issue a “permanent restraining order” at the first or any subsequent hearing or trial, this order could last up to five years. After that, if you request an indefinite extension, the court could give you what is essentially a lifetime restraining order against your abuser. You can protect yourself and your children from harm, get the abuser out of your house and keep him or her away from you, your job, your car, and from contacting you by any means. You could even obtain child support and custody and visitation orders.
Other than the Family Court orders, if you suffer serious abuse, particularly physical abuse, you could report the abuse to law enforcement and the other person could be charged with a crime. In that case, there is an entirely different process but if the person is charged and a criminal case is filed, the court should automatically issue a Criminal Court Protective Order that is separate from the Family Court orders. These procedures can be, and quite often are, started and tracked simultaneously.
You can speak to us if you believe you are the subject of domestic violence abuse. JWB Family Law has years of experience in San Diego County with divorce restraining orders and abuse cases. All communications we have once we develop a lawyer-client relationship are completely confidential.