Family Law Restraining Order Basics
In California, there are many types of restraining orders that can be obtained based on different types of legal proceedings. A family law restraining order differs from a civil restraining order, workplace violence restraining order, elder abuse restraining order, and a domestic violence restraining order.
Generally speaking, a family law restraining order is designed to restrain a party from molesting, attacking, striking, threatening, harassing, following, or otherwise keeping the other person under surveillance, or entering the residence of another, vehicle of another, or workplace of another person.
Specifically, Family Code Sections 6210 through 6320 govern the types of relief (orders) that can be requested by one person to another in family law cases. Family Code Section 6220 states: "The purpose of this part [known as the Domestic Violence Prevention Act (DVPA)] is to prevent a person from being the victim of domestic violence by another person, if the person requesting the order is in reasonable fear of that abuse. Also, the DVPA is intended to prevent violence, abuse, and the threat of violence and abuse against children." Family Code Section 6320 goes on to state that additional relief may be ordered by the court as follows:
"An order under this section may:
(b) Protect the named persons from being stalked , including, but not limited to, orders: (1) Prohibiting the specified persons from contacting the protected persons by telephone or by mail or engaging in other activities for the purpose of obtaining the person’s communications or threatening to commit any of those acts.
(2) Prohibiting the specified person from going to the school or place of employment of the protected person and going to the immediate range of the school grounds or the premises of the employment.
(3) Orders by the court excluding a person from a household.
(c) Orders to exclude a person from the residence of the person requesting the protection even if that person has rights of possession to the premises.
(d) Orders restraining specified behavior of the person to be protected and provisions for the benefit of the protected person to address financial resources, including orders to prevent the other party from transferring, borrowing against, or otherwise spending money held in accounts that are solely or jointly held by the protected party, the other party, or both parties."
This brief sample of Family Code Section 6320 sets the standard for relief that a requesting party is entitled to when obtaining relief by way of a family law restraining order at the family law court.
Types of Family Law Restraining Orders
There are several types of family law restraining orders that a person can request. This will vary from state to state, and possibly change based on the background of the person requesting the restraining order. In most jurisdictions, there are likely to be three basic types of restraining orders: emergency, temporary and permanent.
Emergency restraining orders are sometimes known as ex parte restraining orders. An emergency restraining order is a document that is sought immediately when one spouse believes their partner will hurt them or some other member of the family. For a person seeking emergency protection, the police or sheriff in your area will need to be called. The police will likely assist with completing the paperwork for a restraining order. It is generally important to have supporting documentation of any claims that are being made.
Temporary restraining orders are issued to the couple for a limited period of time. The temporary restraining order will last for up to a month. At this point the court may hold a full hearing and issue a permanent restraining order.
Permanent restraining orders are hopefully the end of the line. A permanent restraining order is what is issued when the court deems it necessary to stop future acts of violence. Upon request, the court will schedule a hearing so that both spouses have the opportunity to appear and speak to the situation. The final outcome will be determined based on what evidence was presented. Permanent restraining orders may last indefinitely, or in some cases they can be lifted if the court decides to do so.
How to Secure a Family Law Restraining Order
In a family law context, a protective order is called a family law restraining order. A Family Law Restraining Order may be obtained when there has been a history of domestic violence, or a threat of domestic violence, between the parent and the child of that parent’s spouse or former spouse, or between people who live together, or used to live together, and in that relationship were intimate partners, even if there has been no legal marriage. These motions are typically brought under California Family Code § 6320.
Family Code § 6320, permits, without notice, a judge to issue orders to protect a party if the court finds that there is an immediate danger of domestic violence. If the judge issues an ex parte order without notice, then the respondent will be notified to appear in court to show cause why the temporary restraining order should not remain in place.
When you are preparing a request for a restraining order there are three basic steps that usually must be involved.
First, the person seeking the restraining order must file the application which will typically include information such as: the names of the persons sought to be protected, the persons against whom the restraining order is sought, a list of the specific acts of alleged abuse, and a description of the injury caused by the abuse.
Second, there will often be a hearing date set at which time the parties must appear, with or without an attorney, to show cause why the restraining order should or should not be made permanent.
Third, after the hearing, if the court determines that there has been sufficient evidence of domestic violence, the Court will issue a Restraining Order that will generally be effective for a period of three to five years. Generally, there is no restraining order after that period of time unless the protected party requests an extension.
Legal Burdens and Evidentiary Requirements
The legal criteria and types of evidence required for a family law restraining order depend on the issues involved in the current situation. In most cases, there must be a documented, continuous pattern of abusive behavior. The courts want to see that a defined course of behavior demonstrates that a restraining order is required to protect the petitioner from future harm. In situations that involve domestic violence, there must be evidence that shows a credible fear of future abuse, or evidence demonstrating a past history of abuse and an increased likelihood of future abuse.
In domestic violence cases, California’s Temporary Restraining Order forms (DV-100 through DV-130) list numerous types of behaviors that meet the legal definition of domestic abuse:
While there are no strict legal criteria governing how recent the incidents of abuse must be, courts generally expect that the incidents cited for use in obtaining a restraining order occurred within the past two years, but victims who have been subjected to long-term abuse can still obtain a restraining order. California courts that handle domestic violence hearings are not bound by stringent rules of evidence in determining who should be granted a restraining order.
Sometimes parents seek a family law restraining order against the child’s other parent, so that they can avoid more extreme legal remedies if non-violent disputes arise with their ex. Whenever there is a chance that a child might suffer harm from continuing contact with an abusive parent, judges can issue a family law restraining order as a preventative injunction until a full court hearing can be held on the merits. These restraining orders can be renewed indefinitely, whenever protective custody proceedings are active.
In the case of other family law restraining orders, such as the ones that address child custody or visitation, lawyers recommend that clients see a qualified therapist who can help them address the issues peacefully. Experience shows that family attorneys are usually the first resource clients seek, even though a family law restraining order is best inserted into a more comprehensive parenting plan as a temporary measure to ensure safety before the issues can be addressed in the context of therapeutic intervention.
Family law restraining orders require evidence to support the claims of the person filing for protection. In California, judges generally do not consider hearsay evidence when making the determination to grant or deny a family law restraining order. The person requesting the restraining order must come to the initial court hearing with a detailed declaration/a statement that is properly set forth on the local family law forms, the purpose of which is to tell the judge what happened, when it happened and what the person seeks. Getting help from a qualified family law attorney is essential.
Responding to a Restraining Order
If you are served with a family law restraining order, whether you are in the middle of a divorce or married and your spouse has filed for a restraining order against you, there are a few things that you should do immediately.
First, do not ignore the restraining order. If you take no action, that is a tacit approval of the order that will also make it difficult to go back and redo issues you missed due to the restraining order.
Second, seek legal counsel immediately. Having a lawyer by your side can help walk you through the complex legal processes involved with the issues at hand. Not only does it help protect and inform your legal rights, but it also indicates that you are taking the matter seriously and are doing all that you can to protect yourself and your family.
Third, attain and thoroughly study the restraining order that was filed. It will have specific language that you need to take into account when you respond. There may be a deadline by which you must respond to the order, such as within 30 days of being served, or it may be 5 days for an ex parte order. If you do not respond in time , you will not have a chance to contest it in court and it will be entered into the system.
Fourth, be prepared to change elements of your lifestyle based on the orders filed against you. You may find yourself unable to live in your house any longer, or leaving your home due to numerous violations that could occur as you and your spouse continue to reside in the same place. Make sure that you take all steps necessary to protect yourself, especially if domestic violence is a factor.
Lastly, be respectful of the other party when responding to the orders. Even though this may be a non-adversarial process, it is unwise to engage in name-calling or personal attacks, even online. You never know how this kind of communicative behavior will affect the case, but the judge will be reading and reviewing everything that the two parties involved put into writing. Do your best to remain neutral in all forms of communicative response, whether verbal or written.
Consult your attorney if you have further questions about how to proceed when you are served with a family law restraining order. They can advise you on the best possible course of action to take.
Consequences of Restraining Order Noncompliance
Enforcement of a restraining order is serious business. If a person named in a family law restraining order fails to comply with the order, the protected party has one of two options. If the petitioner only wishes for the defendant to stop all the harassment, she or he can file a motion for contempt. In this action, the court may also choose to issue a civil fine or other order to compel compliance. However, if the petitioner fears for her or his safety they can call the police and have the police arrest the respondent. It is a crime to violate a restraining order, and the consequence can be $1,000 in fines and up to one year in prison behind bars.
Violation of the order must be "willful." The person must willfully disobey the order; however, this does not mean that the court must clearly state what the respondent cannot do or must do. The restraining order must be clear enough so the person can understand what he or she cannot do or must do. The court will be lenient if it appears that the person simply did not understand the order. For example, in a case where the respondent still harassed the petitioner even though he claimed that he believed that the court had dismissed the restraining order, the order was still clear in writing and therefore the person understood what to do or not to do.
A violation of a restraining order will remain in the past, and will not appear on the respondent’s criminal record unless a criminal court hears the crime.
Restraining Orders and Their Impact on Family Law Matters
The possibility of a restraining order may also affect the results of any legal actions that might be in process or that may progress while the protection order is in effect. For example, when applying for a protection order, the applicant must set forth grounds on which the protection order is sought. The grounds set forth in the application may be different than the ultimate findings made by the family court. Additionally, the allegations made in the restraining order application and by the restraining order judge may be different than the facts proven at a trial on the merits of a divorce, custody, adoption, guardianship, or other family court case. These factors may prejudice the ultimate result in a family court case.
Alternatively, a family court may make different findings of facts than those made by the protective order judge. These findings of fact may then prejudice the outcome of the protection order proceedings or the underlying family matter by imbuing any litigants who are involved with personal characteristics that they may or may not possess. For example, a family court judge may make a finding that one litigant is an alcoholic while the protective order judge finds no such history of abuse in the home. This finding by the family court judge may make a protective order even less likely to issue. On the other hand, if a protection order is issued that makes such a finding, that finding will likely hamper any future attempt by the other spouse to prove that person is an alcoholic or unfit to parent without the underlying evidence that would usually be required to establish a finding of that nature.
Assistance, Aid, and Guidance
Both plaintiffs (applicants) and defendants (respondents) in family law restraining order cases can find assistance at several government and legal services websites. The California Department of Justice website lists resources for help with restraining orders in counties throughout the state. The Family Violence Law Center website lists many organizations across the nation that provide assistance and guidance to plaintiffs and defendants. Generally, organizations providing services include advocates and legal aid for women, children, men, and other types of victims. The federal website www.womenslaw.org holds information pertaining to contestants of both genders in all 50 states, including details about obtaining and maintaining a restraining order . Several websites offer referral and advice from licensed and trained legal professionals to individuals seeking help resolving their restraining order issues. Among them are the DivorceNet website and LegalZoom website. The federal government Department of Justice website also provides a broad range of similarly useful links to the following resources related to domestic violence: Victims of domestic violence can seek help by calling the National Domestic Violence Hotline at (800) 799-7233 or (800) 787-3224 (for TTY and TDD). The Family Violence Prevention Fund features a pamphlet that summarizes and explains general points concerning restraining orders and addresses some frequently asked questions about protecting children and pets from intimate partner abuse.