Domestic Violence Restraining Orders
In high conflict family law matters it is sometimes necessary for an individual to obtain a restraining order when domestic violence has occurred. The Domestic Violence Prevention Act (DVPA) [FC §§6200–6409] authorizes a procedure to obtain restraining orders to restrain domestic violence and make other custody, support, and property family law orders.
Under DVPA “abuse” means any of the following: (1) Intentionally or recklessly to cause or attempt to cause bodily injury. (2) Sexual assault. (3) To place a person in reasonable apprehension of imminent serious bodily injury to that person or to another. (4) To engage in any behavior that has been or could be enjoined pursuant to Section 6320.
Further under DVPA, domestic violence is abuse perpetrated against any of the following: (1) A spouse or former spouse. (2) A cohabitant or former cohabitant. (3) A person with whom the abuser is having or has had a dating or engagement relationship. (4) A person with whom the abuser has had a child. (5) A child of a party or a child who is the subject of an action. (6) Any other person related by consanguinity or affinity within the second degree (related by blood or marriage, e.g., grandparent, grandchild, brother/sister, parent, in-law).
Under the terms of Family Code Section 6320, the requisite abuse need not be actual infliction of physical injury or assault. It includes indirect and threatening contact with the victim, such as viewing private e-mail, learning a social schedule, and communicating this information to third persons.
If a restraining order is obtained the duration of any the personal conduct, stay-away, and residence exclusion orders that are issued maybe in effect for a period of up to five years. Included in the orders, as part of the restrained person’s restitution, can be a requirement that the restrained party participate in a batterer’s program approved by the court. The restraining order may be renewed on the request of a party, either for five years or permanently, without a showing of any further abuse. The request for renewal may be brought at any time within the three months before the expiration of the orders.
Under Family Code Section 3044, if a party seeking custody perpetrated domestic violence within the previous five years against the other parent or against the child or a sibling, a rebuttable presumption applies that the award of sole or joint physical or legal custody to that party is detrimental to a child’s best interest. This presumption of detriment can only be overcome or rebutted by a preponderance of the evidence.
Today, under the Violence Against Women Act, a restraining order issued by a state or tribal court that has jurisdiction over the parties and subject matter and that gives the respondent reasonable notice and opportunity to be heard must be given full faith and credit by another state or tribal court and enforced as if it were the order of the enforcing state or tribe.