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Abuse and Domestic Violence

What should I do if my spouse injures me, or my child or another person who lives with me?

If your spouse injures you or anyone else in your household, call the police immediately. The police can, if warranted, contact an on-call judicial officer and issue an Emergency Protective Order (also called an EPO) on the spot. This would legally prohibit your spouse from coming within a certain distance of you. It also may grant you temporary custody of your children and bar your spouse from the family home. An EPO remains in effect for five court days, or seven calendar days, whichever is earlier. If this happens, call Bennett Family Law right away, so we can turn the EPO into a longer term restraining order for your family’s protection.

If your spouse has recently injured you, a child or another person in your household, a restraining order through the family law court may still be obtained even if an EPO was not issued. Please call the Bennett Family Law attorneys right away to discuss the situation and determine the appropriate legal action.

Are You a Victim of Domestic Violence?

Here’s some valuable information everyone should know:

What Exactly is Domestic Violence?

Domestic Violence Abuse is defined as any of the following:

  • Physically hurting or trying to hurt someone intentionally or recklessly;
  • Sexual assault;
  • Making someone reasonably afraid that they or someone else are about to be seriously hurt (like threats or promises to harm someone); or
  • Behavior like harassing, stalking, threatening, or hitting someone; disturbing someone’s peace; or destroying someone’s personal property;

Abuse can be kicking, shoving, pushing, hair pulling, throwing things, scaring or following you, or keeping you from freely coming and going. It can even include physical abuse of family pets. Abuse in domestic violence does not have to be physical. Abuse can be verbal (spoken), emotional, or psychological. You do not have to be physically hit to be abused. Often, abuse takes many forms, and abusers use a combination of tactics to control and have power over the person being abused.

What is a Domestic Violence Restraining Order (DV-RO)?

A domestic violence restraining order is a court order that helps protect people from abuse, and/or threats of abuse from someone they have a close relationship with.

Who can ask for a Domestic Violence Restraining Order (DV-RO)?

You can ask for a domestic violence restraining order if:

  1. A person has abused (or threatened to abuse) you; and
  2. You have a close relationship with that person. A close relationship means you are:
    • Married or registered domestic partners;
    • Divorced or separated;
    • Dating or used to date;
    • Living together or used to live together (more than roommates);
    • Parents together of a child; or
    • Closely related (parent, child, brother, sister, grandmother, grandfather, in-law).

If you are a parent and your child is being abused, you can also file a restraining order on behalf of your child to protect your child (and you and other family members). If your child is 12 or older, he or she can file the restraining order on his or her own.

 

What will a Domestic Violence Restraining Order (DV-RO) do for me?

A Restraining Order can order the restrained person to:

  • Not contact or go near you, your children, other relatives, or others who live with you;
  • Stay away from your home, work, or your children’s schools;
  • Move out of your house (even if you live together);
  • Not have a gun;
  • Follow child custody and visitation orders;
  • Pay child support;
  • Pay spousal or partner support (if you are married or domestic partners);
  • Stay away from any of your pets;
  • Pay certain bills; and
  • Release or return certain property.

Once the court makes a restraining order, the order is entered into a statewide computer system that all law enforcement officers have access to. Your restraining order works anywhere in the United States. If you move out of California, contact your new local police so they will know about your orders.

What a restraining order CANNOT do:

A restraining order cannot:

  • End your marriage or domestic partnership. It is NOT a divorce.
  • Establish parentage (paternity) of your children with the restrained person (if you are not married to, or in a domestic partnership with, him or her) UNLESS you and the restrained person agree to parentage of your child or children and agree to the court entering a judgment about parentage.

What are the effects of a restraining order on the restrained person?

For the person to be restrained, the consequences of having a court order against him or her can be very severe.

  • He or she will not be able to go to certain places or to do certain things.
  • He or she might have to move out of his or her home.
  • It may affect his or her ability to see his or her children.
  • He or she will generally not be able to own a gun. (He or she will have to turn in or sell any firearms he or she has, and will not be able to buy a gun while the restraining order is in effect).
  • The restraining order may affect his or her immigration status. If you are worried about this, talk to an immigration lawyer to find out if you will be affected.
  • If the person to be restrained violates the restraining order, he or she may go to jail, pay a fine, or both.

Types of Domestic Violence Restraining Orders:

Emergency Protective Order (EPO):

An EPO is a type of restraining order that only law enforcement can ask for by calling a judge. Judges are available to issue EPO’s 24 hours a day so that a police officer who answers a domestic violence call can ask a judge for an emergency protective order at any time of the day or night.

The emergency protective order starts right away and can last up to 7 days. The judge can order the abusive person to leave the home and stay away from the victim and any children for up to a week. That gives the victim of the abuse enough time to go to court to file for a temporary restraining order.

To get an order that lasts longer than an EPO, you must ask the court for a temporary restraining order (also called a “DV-TRO”).

 

“Permanent” Restraining Order:

Upon expiration of the temporary restraining order, you will go to court for a hearing, where the judge may issue a “permanent” restraining order. They are not really “permanent” because they usually last up to 3 years and sometimes up to 5 years.

At the end of those 3 to 5 years (or whenever your order runs out), you can ask for a new restraining order so you remain protected.

Temporary Restraining Order (DV-TRO):

When you go to court to ask for a domestic violence restraining order, you fill out paperwork where you tell the judge everything that has happened and why you need a restraining order. If the judge believes you need protection, she or he will give you a temporary restraining order. Temporary restraining orders usually last between 20 and 25 days, until the court hearing date to decide if a permanent restraining order is necessary.

 

Criminal Protective Order (CPO) or “Stay-Away” Order :

Sometimes, when there is a domestic violence incident (or series of incidents), the District Attorney will file criminal charges against the abuser. This starts a criminal court case going (versus a family court case where most domestic violence restraining orders are heard). It is common for the criminal court to issue a criminal protective order (CPO) against the defendant (the person who is committing the violence and abuse) while the criminal case is going on, and, if the defendant is found guilty or pleads guilty, for 3 years after the case is over.

The Restraining Order Process

When someone asks for a domestic violence restraining order in court, they have to file court forms telling the judge what orders they want and why. What happens after that varies a little from court to court, but the general steps in the court case are:

  1. The person wanting protection files court forms asking for the domestic violence restraining order.
  2. The judge will decide whether or not to make the order by the next business day. Sometimes the judge decides sooner.
  3. If the judge grants (gives) the orders requested, he or she will first make “temporary” orders that only last until your court date. The court date will be on the paperwork.
  4. The person asking for protection will have to “serve” the other person with a copy of all the restraining order papers before the court date. This means that someone 18 or older (NOT involved in the case) must hand-deliver a copy of all the papers to the restrained person.
  5. The restrained person has the right to file an answer to the restraining order request, explaining his or her side of the story.
  6. Both sides go to the court hearing.
  7. At the hearing, the judge will decide to continue or cancel the restraining order. If the judge decides to extend the restraining order, the “permanent” order may last for up to 5 years (typically they are 3 years).
  8. If the judge also makes other orders in the restraining order, like child custody or child support orders, these orders will have different end dates and usually will last until the child turns 18 or a judge changes them.

These temporary orders can include issues like:

  • Ordering the restrained person to stay away and have no contact with the protected person (and other protected people and family pets);
  • Child Custody;
  • Who can use the family home; or
  • Who can use other property, like a car.
  • If the protected person does not go to the hearing, the temporary restraining order will usually end that day and there will not be a permanent restraining order.
  • If the restrained person does not go to the hearing, he or she will have no input in the case and his or her side of the story will not be taken into account.

Resources for Victims of Domestic Violence:

Bennett Family Law highly recommends you contact the non-profit agency, S.A.F.E. (Safe Alternatives for Everyone). S.A.F.E. provides immediate counseling and resources for victims of violence, including a “safe house” and secure cell phones.

S.A.F.E. is located in Temecula, California:

S.A.F.E.

28910 Pujol St.

Temecula, CA 92590

(951) 587-3900

www.safefamiliesca.org

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