Monday, January 22, 2018

Domestic Violence Restraining Orders Information

A domestic violence restraining order (DVRO) is a court order that is designed to legally restrain a person's abusive conduct and/or communication with a protected person and/or give legal permission to the protected person to do something that the protected would not ordinarily be legally allowed to do.
Examples: 1) A domestic violence restraining order may be used to restrain a person from contacting or communicating, directly or indirectly, with a protected person, or the protected person's family, 2) A domestic violence restraining order may give legal permission to a protected person to secretly audio record the another person, or 3) A domestic violence restraining order may allow the protected person to have temporary control of the family home, and more. Other common DVROs are listed below.
Domestic violence is defined as physical or emotional abuse directed at a close family member, a current or former spouse, or at persons who are dating or have dated romantically. A domestic violence restraining order is intended to legally abate the abuse and establish protection for the protected person and his or her family. Abuse includes, but is not limited to: annoying, harassing, threatening, assaulting, stalking, molesting, or intimidating the protected person, or his or her property, directly or indirectly. 
Note: There are different types of restraining orders, including domestic violence restraining orders, civil harassment restraining orders, criminal protective orders (CPOs), elder abuse restraining orders, workplace employee restraining orders, and more. This article is dedicated to a discussion of domestic violence restraining orders that are filed in family law court. For information on other types of restraining orders, please contact our divorce and family law attorneys for a free consultation.
Common domestic violence restraining orders include:
  • Order to stay away from the protected person/s
  • Order to not contact, directly or indirectly, with the protected person
  • Order to contact peacefully only (Also called no-negative contact orders)
  • Order to not harass, annoy, molest, stalk, or threaten the protected person
  • Order to relinquish, sell, or store firearm/s
  • Order to transfer a phone number
  • Order to move out of a home (temporary or permanent)
  • Order allowing secret audio recording of restrained person
  • Order for restitution on damage to victim (lost wages, medical bills, etc.)
  • Order for restitution on property damage
  • Order for alimony (also called spousal support)
  • Order for child support, child custody, and child visitation
  • Order for attorney fees
  • Order to enroll in domestic violence batterers classes
  • Order for supervised visits
  • Order for mediation to determine child custody or visitation
  • Order to abate travel with children
  • Order to establish parentage, and more.
Collateral consequences upon a loss to a DVRO requestIn addition to any that might be made against the defendant, other consequences from a loss to a DVRO request can include: possible loss of visitation or custody of children, loss of the right to own or possess firearms, loss of employment, loss of reputation, loss of immigration status, and more. It is highly advised that a litigant to a DVRO request seek the assistant of a divorce or family law attorney without delay.
Cautionary Note: Procedures, rules, and necessary forms that are required for obtaining a domestic violence restraining order are discussed herein, but please remember, there is no good substitute to the retention of an experienced and successful family law attorney and/or criminal defense attorney to make sure you have the best chances of success on your request for, or defense of, a DVRO.
Remember the facts supporting a DVRO are often the same facts that support a criminal action and/or a civil lawsuit against the defendant, i.e. stalking (PC 646.9), battery (PC 242 & 243(d)), assault (PC 240, 245(a)), domestic violence (PC 243(e)(1), 273.5), criminal threats (PC 422), annoying phone calls (PC 653m), distributing nude images for revenge (PC 647(f)(4), vandalism (PC 594), trespass (PC 602), contempt of court (PC 166), violation of a protective order (PC 273.6), unauthorized audio recording (PC 632), residential burglary (PC 459), and more. All statements and conduct made by either side in a DVRO request may be used against either side in a subsequent criminal prosecution by the district attorney or a civil lawsuit for damages and restitution. Note: Your own evidence can be used against you if you are not careful in pursuing or defending a domestic violence restraining order.
A cursory knowledge of the law and the required legal forms do not win DVRO cases and a litigant should certainly never defend against a DVRO request without the legal representation of family law attorney and maybe even a criminal defense attorney as the facts that often times support the allegations in a DVRO request have underlying criminal application. If you are able to do so you should hire a family law attorney familiar with criminal defense issues to assist you with your DVRO case, especially if you are defending against a request for DVRO. Our attorneys are trained in collecting, investigating, preserving, and producing evidence in court. Our attorneys are also familiar on which arguments are successful in front of particular judges, and just as importantly, which arguments to avoid in front of particular judges. Our family law and criminal defense attorneys are experienced with the strict rules of evidence production (especially the rules of evidence concerning direct and cross-examination of witnesses), the many rules of court, and the practiced art of persuasion. Some of the biggest mistakes that litigants without attorneys make in prosecuting or defending DVROs is assuming that the evidence they have to support their case will be allowed to be presented, not knowing how to legally prevent the opposing side from presenting damaging evidence, and not following the strict legal rules of timing, service, notice, and post-hearing legal procedures. Remember, judges are not lenient on the rules of court, rules of law, or the rules of legal procedure just because a litigant is not aware of them.
Requirements for requesting DVROs: Domestic violence restraining orders are requested when the protected person and the person sought to be restrained are closely related, living together in a relationship (married or unmarried), or have dated romantically. This includes: all romantic relationships, domestic partnerships, spouses, siblings, parents, children, grandparents, grandchildren, aunts, uncles, and cousins. The legal forms required for obtaining or defending a domestic violence restraining order are found at the bottom right of this page or by clicking DVRO Forms:
For DVROs, the protected person will need to prove that he or she, or a member or his or her family, has directly or indirectly, been harassed, annoyed, molested, threatened, stalked, intimidated, or abused, by a close family member, or a current or former romantic partner, whether married or unmarried. 
Emergency protective orders (EPOs & Ex parte hearings): If a person feels that he or she needs emergency protection from imminent harm to his or her family then that person should call 911. Thereafter, a police officer should investigate the matter and determine if the person needs immediate protection. If the police officer believes that emergency protection is needed the officer may issue an emergency protective order (EPO) on the defendant (assuming the defendant can be found). The EPO is a court order that serves to restrain the defendant from contact or communication. The EPO only lasts a few days and will expire on its own if the protected person does not follow up with seeking a DVRO within a few days.
Temporary restraining orders (TROs & Ex parte hearings): A domestic violence restraining order is often filed in court as an ex parte emergency hearing. Ex parte (pronounced like "party") means that only one side is heard; however, in practice, often times the opposing side will defend at an ex parte hearing if the defendant has time to appear in court on an emergency basis (usually the day after the restraining order papers are filed). Notice to the defendant on an ex parte hearing is usually accomplished by phone through a third person or the protected person's attorney. A temporary restraining order only lasts until a full hearing is had in court several weeks later. Not all requests for emergency hearing are granted. However, even if a temporary restraining order is not granted the court will still conduct the follow-up hearing for permanent restraining order at the subsequent court meeting. 
Permanent restraining orders: A permanent restraining order may be granted after a full hearing on the merits. Note: a "permanent" domestic violence restraining order is not actually permanent. A "permanent" domestic violence restraining order only last for up to five years; however, in some cases, a domestic violence restraining order may be renewed for longer periods if the protected person timely files a request to renew the domestic violence restraining order and produces sufficient evidence to warrant such a renewal.
Note: Information and orders on domestic violence restraining orders is updated to law enforcement via the California Law Enforcement Telecommunications Systems (CLETS) and therefore available to all law enforcement. However, copies of a DVRO should be filed with a child's school, day care, physician, dentist, etc., to provide the best protection for any children involved in the case.
Prepare for the domestic violence restraining order hearings:Arrive early as parking and courthouse entry lines may cause tardiness that judge's frown upon and also causes extra stress. Dress like you are about to interview for a new job. Bring a copy of your proof of service, all paperwork filed, and a copy of any evidence you intend to present. If you are afraid of the opposing party inform the the clerk or the deputy of the court. If you do not have a family law attorney with you for your ex parte emergency hearing, or your request for permanent domestic violence restraining order, practice your strongest arguments while understanding that the judge will not entertain more than about fifteen mins at an ex parte hearing or more than two hours at a full hearing for permanent domestic violence restraining order.
Defense against a request for DVRO: The defendant in a DVRO case is entitled to the presumption of innocence. He or she has strong First Amendment Rights of Free Speech and Association and Fourth Amendment Rights to Privacy and the Right to Rear and Protect his or her children. At the same time, people have the right to be free from harassment by others. These rights are balanced in family law court and the defendant has a right to respond to any allegation that might affect his or her rights.
With that said, the most common defenses to DVRO include: silence, impeaching the plaintiff's evidence and properly objecting to the introduction of any damaging evidence. Impeachment of evidence includes demonstrating bias, prejudice, self-defense, alibi, legal justification for conduct (First Amendment Rights to Free Speech & Association, protection of others, etc.), lack of reliability (memory, trustworthiness of testimonial or physical evidence, foundation for photos, audio evidence, scientific evidence, etc.), lack of relevance, and more.
Note: when criminal protective orders (CPOs) are made in criminal court against a defendant and there are conflicting orders in a domestic violence restraining order the criminal protective orders generally prevail if there is a true conflict. For example, no-negative contact orders in CPOs and no-contact orders in a DVROs are not truly conflicting and therefore the defendant must have zero contact with the restained person. For more information on conflicting restraining order qustions please contact our criminal defense and family law attorneys for a free consultation.
DRVOs and child custody or visitations: If the protected person and the restrained person have children in common but the parties were never married then a paternity case (parentage action) may be filed simultaneously with the DVRO request or response. When child custody, visitation, or support is made part of a DVRO request the parties are usually sent to mediation. Advice on mediation is beyond the scope of this article but a party should always seek the advice of a family law attorney before attending child custody and visitation mediation.
Cautionary Note: If physical domestic violence is occurring in the home and in the presence of a child a parent may may face criminal prosecution if he or she does not file a domestic violence restraining order or file a police report against any person that places a child in danger for failure to protect the child (PC 273a(a)). 
There are no fees associated with domestic violence prevention restraining orders by themselves. All forms must be filled out in blue or black ink. Make at least four copies of your paperwork (for filing, service on opposing side, a personal copy and one for your lawyer). Make at least five copies of all court orders (for schools, doctors, police, personal copy, opposing side, etc.).
Note II: All required paperwork must be served on the opposing party by someone that is not a party to the case, a process server, or the Sheriff. Blank copies of Response to Request for Domestic Violence Restraining Order (Form DV-120) must also be served on the restrained party. After the opposing party has been served do not forget to file the proof of service with the court (DV-200) or the judge will not hear your request for a domestic violence restraining order. Most importantly, have your Restraining Order After Hearing documents (Form DV-130) written up and filed with the court the day of the court hearing so that you have proof of the court's protective order as soon as possible.
If the restrained party did not show up to court on the hearing for permanent restraining order and the orders requested by the protected person at the hearing are the same as the judge's orders then the protected person may serve the judge's orders by mail (Form DV-250); however, if the orders at the hearing on permanent domestic violence restraining order are different then the protected person's request then the the defendant must be personally served the new orders (Form (DV-200). Never personally serve the orders yourself! 
For more information about California domestic violence restraining orders, or  divorce and family law issues, please contact the Divorce & Family Law Attorneys at Dorado & Dorado, APLC for a free consultation today.