Domestic Violence/ Restraining Orders
Whether actual or threatened acts of domestic abuse occur within or without a marital relationship, "protective orders" identical to those available in a marital proceeding may issue ex parte and or on noticed motion in an independent action commenced under the Domestic Violence Prevention Act (DVPA, Ca Fam § 6200 et seq.).
The DVPA is intended to prevent the recurrence of acts of domestic violence and to provide for a separation between the parties involved for a period of time sufficient to enable them to seek a resolution of the causes of the violence. [Ca Fam § 6220]
An alleged domestic violence victim is a "protected person" under the DVPA and thus entitled to the benefit of a DVPA order only if he or she fits one of the descriptions contained in Ca Fam § 6211 (providing that domestic violence is "abuse" perpetrated against specified classifications of persons).
The person seeking a DVPA remedy as a "protected person" must fall into one of the categories described in Ca Fam § 6211:
Spouse: A spouse or former spouse. [Ca Fam § 6211(a)]
Cohabitant: A "cohabitant" or former cohabitant--meaning a person who regularly resides (or formerly regularly resided) in the household. [Ca Fam § 6211(b);Ca Fam § 6209 (defining "cohabitant" under DVPA)]
Dating Or Engagement Relationship: A person with whom the respondent (alleged perpetrator) is having or had a "dating or engagement relationship." [Ca Fam § 6211(c)] As defined by the DVPA, a "dating relationship" means "frequent, intimate associations primarily characterized by the expectation of affection or sexual involvement independent of financial considerations." [Ca Fam § 6210]
Co-parent: A person with whom the respondent (alleged perpetrator) has had a child . . . where, pursuant to the Uniform Parentage Act, the male parent is the presumptive father of the child of the female parent. [Ca Fam § 6211(d)]
Child: A child of a party or a child who is the subject of a Uniform Parentage Act action, where the presumption applies that the male parent is the father of the child to be protected. [Ca Fam § 6211(e)]
Blood Relatives: Any other person related by consanguinity or affinity within the second
Domestic Violence Restraining Orders may include any or all of the following (Ca Fam § 6218):
Temporary Custody: During the pendency of a proceeding where the custody of a minor child is in issue (including domestic relations status actions, Ca Fam § 3120 actions for exclusive custody, DVPA actions provided a parent-child relationship has been established, UPA actions and Ca Fam § 17404 county agency support enforcement actions), the court may make whatever temporary custody order "seems necessary or proper." [Ca Fam §§ 2045(b), 2047, 3021, 3022, 3060 et seq., 6323(a)]
Temporary Child Visitation: The court may also issue a temporary order determining the right of a party to visit a minor child "on the conditions the court determines." [Ca Fam §§ 2045(b), 2047, 6323(a)(1)]
Child Abduction Prevention Orders: The Family Code identifies several factors that may signal a risk one parent might "abduct" the minor children to another county, state or country. If it becomes aware of facts indicating such a risk, the court has a duty to determine whether orders should be entered to prevent the threatened abduction (move-away or travel restrictions, posting a bond, even turning in passports, etc.). [See Ca Fam § 3048(b)]
Protective Orders Where Child Sexual Abuse Is Alleged: If child sexual abuse is alleged during custody proceeding and the court is concerned about the child's safety, the court has discretion to take "any reasonable temporary steps" deemed appropriate under the circumstances to protect the child's safety until an investigation can be completed. [Ca Fam § 3027(a)] In such cases, the court may request an investigation by the local child welfare services agency pursuant to Ca Wel & Inst § 328; and may be required to order a custody evaluation pursuant to Ca Fam § 3118. See Ca Fam §§ 3027(b), 3118)
Assaultive Conduct & Property Destruction: An order enjoining a party from "molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning, including, but not limited to, annoying telephone calls as described in Section 653m of the Penal Code, destroying personal property, contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party, and, in the discretion of the court, on a showing of good cause, of other named family or household members." [Ca Fam §§ 6218(a), 6320, 6340(a)]
Dwelling Exclusion: An order excluding a party from "the family dwelling, the dwelling of the other party, the common dwelling of both parties, or the dwelling of the person who has care, custody, and control of a child to be protected from domestic violence" for whatever period and on whatever conditions the court determines, "regardless of which party holds legal or equitable title or is the lessee of the dwelling." [Ca Fam §§ 6218(b), 6321(a), 6340(a)]
"Effectuating" Order: An order enjoining a party from any other specified behavior that the court deems necessary "to effectuate" § 6320 (assaultive conduct/harassment) or § 6321 (dwelling exclusion) orders. [Ca Fam §§ 6218(c), 6322, 6340(a)]
Firearms Restraining Order: A broad restraining order concerning the possession and acquisition of firearms automatically takes effect by operation of law when the court issues a Ca Fam § 6218 domestic violence protective order: A person subject to a Ca Fam § 6218 protective order is prohibited from owning, possessing, purchasing, receiving, or attempting to own, possess, purchase or receive, any firearms for so long as the protective order remains in effect.
Wiretap Order: A judge issuing a domestic violence restraining order may, upon the victim's request, also include a provision permitting the victim to record any prohibited communication made to him or her by the perpetrator. Absent such an order, the surreptitious recording, although made to document evidence of a crime, could run afoul of state and federal wiretap and invasion of privacy laws. [Ca Penal § 633.6(a)]
Restitution Orders: In domestic violence situations, after notice and hearing, the court may issue the following compensatory monetary orders--but not including "damages for pain and suffering" (Ca Fam § 6342(a),(b)):
Payment Of Victim's Damages: The Court may make an order requiring the respondent perpetrator to pay restitution to the applicant party for loss of earnings and out-of-pocket expenses--including, but not limited to, medical care and temporary housing expenses--incurred as a direct result of the abuse inflicted by the respondent or any actual physical injuries sustained from the abuse. [Ca Fam § 6342(a)(1)]
Damages To The State: The Court may make an order requiring the respondent perpetrator to pay restitution to any public or private agency for its reasonable cost of providing protective services to the other party as a direct result of the abuse inflicted by the respondent or any actual injuries sustained there from. [Ca Fam § 6342(a)(3)]
Payment Of Damages Caused By Unwarranted Application: If the court finds at a noticed hearing that the ex parte protective or domestic violence prevention order issued on "insufficient" supporting facts, an order requiring the party who obtained the order to pay restitution for out-of-pocket expenses incurred by the other party (respondent) as a result thereof. [Ca Fam § 6342(a)(2)]
Batterer's Program: Also, in domestic violence situations, and after a noticed hearing, the court may order the restrained person to participate in a batterer's program approved by the probation department, which may include lectures, classes, group discussions and counseling directed at stopping domestic violence (see Ca Penal § 1203.097(c)--batterer's program standards). [Ca Fam § 6343(a)]
Additional Emergency Protective Orders: Protective orders may be obtained ex parte on an emergency basis (so-called "emergency protective orders") in cases of imminently threatened domestic violence, child abuse and/or child abduction, stalking, or elder or dependent adult abuse. [Ca Fam § 6240 et seq.; Ca Penal § 646.91; see Ca Fam § 6241. These include:
Harassment/Stalking Orders: The Court may issue a harassment protective order (as described in Ca Civ Pro § 527.6) or a workplace violence protective order (as described in Ca Civ Pro § 527.8) as necessary to prevent the occurrence or reoccurrence of "stalking" (defined to mean willfully, maliciously and repeatedly following or harassing another and making a "credible threat" with intent to place that person in reasonable fear for his or her safety or the safety of his or her immediate family; see Ca Penal § 646.9) (Ca Fam § 6274; Ca Penal § 646.91)
Temporary Care Of Children: An order determining the temporary care and control of any minor child of the endangered person and the person against whom the order is sought (Ca Fam § 6252(b))
Domestic Violence Restraining Orders
At the Law Offices of Daniel S. Williams Domestic Violence Restraining Orders are taken very seriously in both prosecution and defense thereof. They are quasi-criminal matters and can have an impact on the remainder of an individual’s life. Accordingly, it is important whether you are in need of a Domestic Violence Restraining Order or have had one put on you without merit that you seek immediate professional help. Time is of the essence in these matters and the longer one waits, the more negatively it can impact their case. Attorney Daniel S. Williams is greatly experienced in these matters and works with a team of professionals including criminal lawyers and retired law enforcement to ensure that the correct and just outcome prevails in these most sensitive matters.
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Law Offices of Daniel S. Williams
704 Forest Ave. Pacific Grove, CA 93950
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