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DEFENDING DOMESTIC VIOLENCE RESTRAINING ORDERS - SIERRA LAW CENTER

Domestic violence restraining orders, (including temporary and emergency protective orders), can have a significant impact on your life.

Although domestic violence restraining orders can lead to criminal prosecution if violated, the domestic violence restraining order process is governed by the California Family Code, beginning with section 6200.

The family code sets forth the grounds for issuance of a domestic violence restraining order, including an emergency restraining order. The family code also identifies the specific relationships that must exist between the parties before a domestic violence restraining order can issue.

Emergency protective orders are generally the first order issued. They are issued on an ex parte basis, meaning without your knowledge and without a present opportunity to challenge the allegations.

The law enforcement officer, (the first responder), called to the scene of an alleged domestic violence incident makes a subjective determination, (generally based on an alleged victim's statement), whether grounds exist for the issuance of the emergency protective order. If the officer determines reasonable grounds exist, the officer will contact a judge who will also make a finding of whether grounds exist for the order. If the judge agrees with the officer that grounds exist for the restraining order, the judge will then issue the emergence protective order. If the person to be restrained is present, the officer will serve the emergence protective order on the alleged perpetrator.

Emergency protective orders are of a limited duration. An emergence protective order can only remain effective for seven calendar days from the date it was issued.

Once an emergency restraining order is issued it is common for the alleged victim to seek a permanent restraining order though the family court system.

An alleged victim seeking a domestic violence restraining order will first make application to the court for a temporary restraining order. The process for temporary orders is also governed by the family code and can be issued ex parte.

To obtain temporary orders, the requesting party initiates the process by completing a request for a domestic violence restraining order. The application must be accompanied by a declaration outlining the reasons for the request. After review of the declaration, if the court finds reasonable proof of past act or acts of abuse the court can issue a temporary protective order.

The court, after reviewing the declaration and finding abuse, can also issue ex parte orders that are intended to prevent further acts of abuse. The court need not have any corroborating evidence to issue ex parte orders.

Some of the ex parte orders a court can issue are stay away orders keeping you, (the restrained person), from coming within a certain distance of the protected person. The court can issue a residence exclusion order kicking you out of the home, even if you own the home or are the only person listed on the rental agreement. The court can even issue orders protecting pets. But most importantly, the court can restrict your right or ability to see your children.

Temporary orders are also limited in duration. Temporary restraining orders can only remain valid for a maximum of twenty one days from the date of issuance, unless the court finds good cause to extend the order to twenty five days.

Once the temporary orders are issued the court will set a court date within the twenty one to twenty five day time frame for a full hearing on whether the temporary restraining order should be made permanent. The hearing on the restraining order takes priority over all other cases on calendar.

Prior to any hearing on a domestic violence restraining order the court is required under the family code to conduct a background check on the party to be restrained by the protective order.

The standard of proof at a hearing to determine if a temporary order should be permanent is the same standard of proof used at the temporary restraining order hearing, whether the court has reasonable proof of a past act or acts of abuse. Again, this is generally based on the declaration of the alleged victim.

After the hearing, if the court grants the application for the permanent restraining order, the court has the authority to make, in addition to the orders under a temporary order, orders excluding the restrained person from the family home, child custody and visitation orders, child support orders and in some cases spousal support orders. The court also has the authority to issue victim restitution to reimburse the alleged victim for out of pocket expenses, including, but not limited to, expenses for medical care and temporary housing, incurred as a direct result of the abuse inflicted by the respondent or any actual physical injuries sustained from the abuse.

The person who is the subject of the restraining order, referred to as the respondent, has a right to challenge the application for a permanent restraining order. The respondent must file a response to a request for domestic violence restraining order.

Responding to a request for a permanent restraining order can be confusing, difficult and in many cases overwhelming and if the domestic violence restraining order is granted could affect you for many years.

The residence exclusion, personal conduct orders, and stay away orders can remain in force for as long as five years from when the order issued. Child custody, visitation and support orders can remain in effect after the termination of the domestic violence restraining order. Any other orders made by the court will remain in effect until the court orders otherwise.

At the end of the restraining order period, the alleged victim can seek an extension of the domestic violence restraining order. The restraining order can be extended for another five years, or in the court's discretion can be made permanent. This extension can be made without any evidence of additional abuse. The extension can be granted on the information contained in the original application provided the restraining order had not previously expired.

Also, all restraining order, whether, emergency, temporary or permanent, will prevent an individual for owning, possessing or having custody or control of a firearm, parts of a firearm or ammunition. If you own a gun you will have to transfer or sell the gun to a licensed firearms dealer or temporarily transfer custody of the gun to law enforcement for the duration of the domestic violence restraining order.

But, more importantly, if the court finds domestic violence has been committed by one parent against the other parent, there is a rebuttable presumption that the parent who committed the domestic violence shall not be awarded sole or joint physical or legal custody of the parties minor child or children.

If you have been served with a request for a permanent restraining order and have questions, call the Sierra Law Center for a free no obligation consultation.

 
 
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