Domestic violence restraining order cases may result from reasonable proof of past acts or threats of physical abuse or harassment by a spouse, significant other, family member, co-habitant, friend, neighbor, or former closely related person. The Court order is intended to prevent the recurrence of domestic violence and ensure a period of separation of the parties.
Domestic violence restraining order matters are filed in the family court and Family Code §6320 defines it to include: intentionally or recklessly causing bodily injury, attempting to cause serious bodily injury, assaulting, battering, stalking, threatening, harassing, excessive communication (including phone or email), or otherwise disturbing the peace.
The Family Court has the power to a issue protective orders after the filing a Temporary Restraining Order, which is done ex parte without notice to the respondent. A hearing is set for several weeks in the future so that the respondent has the opportunity to provide evidence to the court in defense of the request a permanent Restraining Order.
If a domestic violence restraining order is issued it will be set for 1-5 years.
A restraining order will indirectly effect both child custody and spousal support if the respondent was married or has children with the petitioner. First, there is a rebuttable presumption (Family Code §3044) that the perpetrator of domestic violence is not entitled to legal or physical custody of a minor child. This means that the person who commits domestic violence will no longer have custody of their own children. Second, there is a presumption that the perpetrator of domestic violence is not entitled to receive spousal support (alimony).
-A Restraining Order provides a legal basis for law enforcement to arrest a person who violates the Restraining Order, which may deter misconduct by the restrained person.
-Violation of a restraining order is a criminal misdemeanor or felony. The Order is entered into the California Law Enforcement Telecommunications System (CLETS) and electronically displayed to every law enforcement officer.
-A Restraining Order against may adversely affect security clearances, present employment, and future employability.
A skilled domestic violence attorney can greatly assist you in either defending a restraining order request or obtaining a restraining order. If you are served with a Temporary Restraining Order do not contact the person that would be an immediate violation of the order. Do not even return their telephone calls or e-mails, since again, that would be a violation of the order (it does not matter that the other side initiated the contact). Also do not provide any statement or documentation to the Court without counsel (what you consider innocent behavior could be legally determined to be prohibited conduct and you may inadvertently testify against yourself).
Finally, don't hesitate to call Counts Law Firm. Emahn Counts is well-versed in Domestic Violence Restraining Order cases. He may be able to structure an order that results in win-win situation where there is adequate protection and no one suffers extreme consequences that often come along with Restraining Orders.