It’s an all-too-common circumstance, where one spouse fears another. But if you’re the one facing the situation, it can be alarming.
Let’s explore the issue and what can be done, including filing an ex parte restraining order.
The Mechanism Behind an Ex Parte Restraining Order
In situations involving physical or emotional abuse by one person against another, California family law provides a way to gain protection from this abuse through the use of a domestic violence restraining order. The authority for such orders was enacted in Family Code sections 6200-6460, known as the Domestic Violence Prevention Act or DVPA.
After a hearing, an initial restraining order can be issued for up to five years and can later be renewed permanently upon a further petition to the court at least three months before the expiration of the existing orders, without having to state new allegations of abuse. (Family Code section 6345)
To obtain a temporary restraining order, it is most often prudent to proceed to court without notifying the abuser of the request. The usual process for this is called an application ex parte, described as allowing one party to go to court and obtain temporary orders without having a full hearing—and in domestic violence cases, without the participation of the other party.
Orders that might be obtained ex parte pending a hearing can include stay away orders, temporary custody of children, no-contact orders, exclusive use of a family home, and other orders as described in Family Code section 6320. Typically, an ex parte restraining order issued by the court will last until the date of the scheduled hearing, usually about 25 days.
The process begins when you sit down with your attorney to describe the abuse against you. After this initial meeting, your attorney will put together the paperwork for you and send it to court and you should have an answer within a day or two.
The next step will be to have the abusive party served with the paperwork in a timely manner, which could be as close to two days before your hearing.
You will then attend a hearing in court with your attorney and the judge will decide whether or not you will get a longer, more permanent set of protective orders. If you would like to read further, this helpful link from the California Courts will be useful in providing more information about restraining orders.
An Experienced Attorney Can Help With an Ex Parte Restraining Order
When you’re going through a divorce, an experienced divorce attorney can help you navigate the process, including any issues related to safety and an ex parte restraining order.
If you are considering divorce or have already made the difficult decision to pursue divorce and have questions, contact JWB Family Law to schedule a free consultation.