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Divorce Library – Domestic Violence Faqs

  How can a domestic violence restraining order help me?
 

A Domestic Violence Restraining Order is intended to prevent a recurrence of domestic violence and ensure a period of separation of the parties involved, upon reasonable proof of a past act or acts of abuse.

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  What constitutes “abuse” for purposes of a domestic violence restraining order?
 

California law defines “abuse” as the following:

  • Intentionally or recklessly causing or attempt to cause bodily injury;
  • Placing a person in “reasonable apprehension” of imminent serious bodily injury to that person or to another person; or
  • Molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning (including annoying telephone calls), destroying personal property, contacting, or coming near the person requesting the order.

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  Who can request a domestic violence restraining order?
 

Spouses, former spouses, co-habitants, former co-habitants, domestic partners, former domestic partners, persons who have or have had a dating relationship, parents of a child, a child, and other closely related persons.

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  What can a domestic violence restraining order include?
 

The Restraining Order can prohibit conduct considered “abuse”, require the other person stay a certain distance away from you, your work, your home, your school, your vehicle, etc., exclude one party from the home, require domestic violence counseling, order one side to have temporary control of certain property, order payment of certain medical expenses, and if you have children together, the Court can also make orders regarding custody and visitation, including that there be no visitation or supervised visitation. The Court can also make orders for temporary child support.

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  How do I go about getting a domestic violence restraining order?
 

In order to obtain a Restraining Order, you must complete and file with the Family Court forms and other proof showing why you are entitled to a Temporary Restraining. If the Court concludes that there is a proper basis for your request, the Court will set a hearing. Your papers must be served on the other side, and the other side has the opportunity to respond. At the hearing, the Court will typically take live testimony as to the basis for your request for a Restraining Order. If the Court is satisfied that there is a proper factual and legal basis for the request, the Court may issue a Restraining Order After Hearing good for up to five (5) years. The orders may be renewed for up to five (5) year without any further showing of abuse since issuance of the original order.

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  Will a domestic violence restraining order protect me against a violent person?

 

The 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. Even technical violations of the restraining order are misdemeanors. The Order, when issued, is entered into the California Law Enforcement Telecommunications System (CLETS), which allows every law enforcement officer to access a copy of the order electronically when responding to a call for service by a victim.

At the same time, a piece of paper may not deter a person with no respect for the law. Since police may not be able to respond promptly to a call for assistance, you are ultimately responsible for your own personal safety. If you have such concerns, please take the time to determine what law enforcement resources are available to assist you.

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  Should I care if someone obtains a domestic violence restraining order against me?

 

Yes. Issuance of a Domestic Violence Restraining Order is an extremely serious matter. First and foremost, if you violate the order in any way, then you may be subject to arrest and criminal prosecution. Second, if you have any firearms, you must promptly surrender them to law enforcement or a Federally-licensed firearms dealer and you may be prohibited from possessing or purchasing firearms for years. If you are peace officer, security guard, or military, then you often will not be permitted to possess or control any firearms. Third, having a Restraining Order against you could adversely affect security clearances, present employment and future employability.

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  What should I do if I am served with a temporary restraining order and/or request for a domestic violence restraining order?

 

First, read the order to see what conduct is prohibited.

Second, do not contact the person named as a Protected 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). Third, do not send anything to the Court (what you consider innocent behavior could be legally determined to be prohibited conduct and you do not want to inadvertently testify against yourself).

Finally, call a lawyer who is well-versed in Domestic Violence Restraining Order cases. Such a lawyer may be able to structure an order that results in win-win situation where the other side feels adequately protected and you do not suffer the extreme consequences of having a Restraining Order against you.

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