DOMESTIC VIOLENCE RESTRAINING ORDERS
Aug. 10, 2019
A restraining order or protective order is an order used by a court to protect a person, business, company, establishment, or entity, and the general public, in a situation involving alleged domestic violence, assault, harassment, stalking, or sexual assault. In the United States, every state has some form of restraining order law. In California there are two types of restraining orders, domestic violence restraining orders and civil harassment restraining orders. A domestic violence restraining order is an order that helps protect you from someone with whom you have a close relationship and who is abusive, such as a spouse, partner, parent, child, sibling. In most counties it is filed in the family court and often in relation to an ongoing case such as a divorce. A civil harassment restraining order is filed against non-family members from whom you need protection, such as neighbors or co-workers. The purpose of this article is to discuss domestic violence restraining orders.
Domestic violence occurs through verbal, mental, or physical threat or abuse on a person (victim) who has had an intimate relationship with the other person (abuser) or is related by blood. It is a pattern of behavior intended to control the other person by causing them to feel frightened, intimidated, humiliated, or isolated.
Domestic violence is not gender specific. It can happen to anyone, and any gender can be the abuser or the victim. It is also not dependent on sexual orientation. Domestic violence is a form of abuse which can occur in the form of sexual assault, intimidation, beating, hair pulling, choking, stalking, destruction or stealing of property, or threats of these and many more.
Types of Domestic Violence
Domestic violence comes in various forms, though most times it is erroneously seen as just physical abuse. It affects numerous people and comes in various patterns.
Physical abuse includes all forms of physical harm or threat which may or may not show obvious injury. It includes slapping, hitting, choking, and all other physical violence.
Psychological abuse has to do with messing with the victim’s mental being. It is a pattern of intimidation, threats, humiliation, and embarrassment perpetuated against a person’s mental health.
Sexual abuse involves sexual humiliation or forcing another to partake in sexual acts against their will. It includes rape, sexual harassment, prostitution, or coercing another into other forms of sexual activities, including pornography.
Emotional abuse undermines the victim’s sense of self-worth and includes incessant criticism, name-calling, belittling, etcetera.
Economic abuse is a pattern of abuse involving withholding money or other empowering resources from the abused, thereby making the victim economically dependent on the abuser. When a partner forbids the other from working or controls the financial resources or access to them, that is economic abuse against the other.
Restraining orders are legal orders the state court issues in order to force someone to desist from hurting another. Basically, a restraining order prevents a person from undertaking certain actions that can adversely affect the one seeking the restraining order. It can forbid the person from contacting the other, maintaining a specific distance one must stay from the other. It seeks to protect the victim from the other person.
There are three main types of restraining orders to prevent domestic violence:
Emergency protective orders (EPO)
Temporary restraining orders (TRO)
Domestic violence restraining order (DVRO)
Violation of any of these orders may result in criminal or civil punishments depending on the case.
Domestic Violence Prevention Act (DVPA)
By providing fast and easy means for the domestic violence victim to seek immediate succor, DVPA seeks to protect the abused. It allows the victims to seek a restraining order against the abuser.
The reasons behind the act and laws against domestic violence are laudable in that they seek to end/minimize abuse and protect the victims. Yet, it is a difficult and controversial aspect of family law litigation. It is as broad as it is complex and sometimes difficult to prove in court without physical evidence or witness.
The DVPA protects these classes of people:
Spouses and ex-spouses
Blood relatives including mother, father, child, sister, brother, in-law, or grandparent.
Co-habitants or former co-habitants (persons regularly living in the household currently or in the past with a closer relationship than ordinary roommates)
An individual that was in an engagement/dating relationship with another
A child of a parent
Co-parent (mother and father of the same child)
Any of the above individuals can file a restraining order. As a parent, you can also file one on behalf of an abused child, including yourself and other members of your family. A child of 12 years of age or older can file for a restraining order too.
The process of domestic violence action begins once the victim notices any danger from the abuser. The victim can ask the law enforcement agents for an emergency protective order (noticed or unnoticed) from the judge.
To make this more permanent, the victim needs to file restraining order papers in family court. The domestic violence prevention forms are available for free and online. This will be followed by a formal hearing at which the accuser testifies, and if there are witnesses, they testify too.
Domestic Violence Restraining Orders (DVRO)
DVRO is an order issued by the civil court, signed by a judge ordering the abuser to cease abusing the victim or face punishments. If you or someone you know is under threat of domestic abuse or facing domestic violence, you can seek protection using a court’s domestic violence restraining order. The order may not actually halt the abuser in his abusive tracks, but it allows the abused to seek assistance from the police. The police, in turn, will arrest the abuser for violation of the order, thereby protecting the victim from more abuse in the future.
DVRO laws differ from state to state. Basically, though, they state who can file for the order, the process of enforcement, and the type of defense or reprieve the victim can receive following such order.
According to the California Domestic Violence Prevention Act, domestic violence is a threatened or actual abuse from someone with whom you have had a close relationship. The DPVA recognizes sexual, physical, verbal, spoken, or written acts as abuse.
The Act seeks to protect the victim or children under the age of 18 and living under the victim’s roof from threats or acts of domestic abuse. Abuse according to the definition of the law is broad and involves reckless or intentional acts as follows:
Placing a person in reasonable apprehension of imminent physical injuries
Destroying personal property
Threatening/harassing telephone calls
Contacting directly or indirectly
Coming within a specified distance
Disturbing their peace or
Threats to carry out any of the above
The Domestic Violence Restraining Order can do the following:
Prohibit the abuser from contacting the victim via telephone, text messages, notes, email, mail, fax, third person, or sending gifts and flowers
Forbid the abuser from possessing or purchasing a firearm
Inform the police to remove the abuser from the shared home and assist the victim in going back to the home
Essentially, ask the abuser to avoid any contact with the abused, whether at home, the workplace, school, a friend’s home, or any other location of shelter for the victim
Give the victim a temporary full control over properties owned together such as vehicles, bank accounts, equipment, and appliances
Order the abuser to pay certain fees and bills including attorney fees and money lost due to absence from work in the course of the case
Demand that the abuser return your personal belongings
Demand that the abuser comply with any other relevant demand made by the victim
If there are children involved in the partnership, the abused is entitled to ask for the following:
Child custody and visitation
Removal of the child
Child support payments
The judge’s decision is dependent on the available facts of the case.
In order to get a restraining order, the victim must show proof of present or past abuse.
There are three types of domestic violence restraining orders a victim can seek:
Emergency protective order: When a police officer answers a domestic violence call, the officer can notify the judge and request an emergency protective order. This can be done at any time, day or night, and it takes immediate effect. However, an emergency protective order lasts only 5 court days or 7 calendar days. It is meant to buy the abused time to go to court to seek a domestic violence protective order. The emergency protective order aims to offer temporary reprieve to the abused and restrain the abuser by either asking the abuser to leave home or stay away from the victim and the children, if any.
Temporary (ex parte) restraining order: This type of restraining order comes in handy when you apply for a restraining order from the court. It usually takes about three weeks before the initial domestic violence restraining order hearing and in that period, if the abused is in imminent (immediate) danger, he/she can request a temporary restraining order. This can last up to 15 days or until the full court hearing is held. The good part is that you can get the temporary restraining order ex parte; that is, without the perpetrator being present.
Restraining order after hearing: An after-hearing restraining order is more permanent in nature, as it can last up to 5 years and can be extended for another 5 years or permanently, as the case may be. This type of hearing comes after the judge has the court hearing. It is aimed at restraining the abuser from harassing, abusing, or threatening the victim.
However, the court can only make the extension if it believes the abused has a “reasonable” fear of continued abuse, threat, or harassment from the abuser when the initial restraining order expires. This does not mean that there must be further incidences of abuse before the victim can ask for an extension of the order.
The Process of Obtaining a Domestic Violence Restraining Order
The first step is to apply for a DVPO at the county court of the abuser’s residence or the location where the abuse took place. You can locate the courthouse in your county from the California Courthouse Locations & Info.
The next step is to fill out all the forms you need to file a domestic violence restraining order. You can find out all the necessary forms involved by contacting the court clerk’s office. Be sure to indicate the type of protection you desire, especially if you need a temporary restraining order. Most of these forms are also available online. While filling out the forms, be sure to consult the instruction booklet, enquire if there are any specific rules applicable, and type neatly if your handwriting is not legible enough.
After filling all the vital forms, it is time to file the completed forms physically or via mail. Then you will obtain a hearing date. Only the judge has the power to review the applications filed and sign the order. The court clerk will then inform you of the hearing date and the location, which you must not fail to attend.
The fourth step is the service of process. According to the law, the abuser must be formally notified of the charges before any permanent judgment can be passed. Any other person above 18 can serve the abuser but not the abused or other persons involved in the case. There is a deadline for the service process, and the abused has the right to form an answer.
The final step is to go for the court hearing, and the abuser must be present for this hearing. Otherwise, the judge cannot make any judgment on the restraining order. The abused must endeavor to come with copies of all the forms filled, proof (pictures, police reports, repairs, bills), and other documents vital to the case.
If you are faced with domestic violence challenges, you can seek the assistance of a family attorney. In case you are denied DVRO, please contact domestic violence resource centers and possibly an attorney. Without physical injuries or other evidence, it becomes a game of who said this, who did that, thus making it difficult to pass the right judgment.
Domestic violence can have far-reaching effects on everybody involved, from the abused to the abuser and those around them. The record goes into the police database and could adversely affect one’s future life in terms of job, business, loans, and such.