A party who is the victim of domestic violence should seek immediate intervention from law enforcement to obtain an emergency protective order. The party can then apply to the Court for a temporary and permanent restraining order depending upon the circumstances of the case. The party requesting a permanent domestic restraining order will need to prove by a preponderance of the evidence that abuse has occurred as defined under the Family Code. This mean that the party must show by credible and admissible evidence that there has been physical violence, stalking, sexual assault, harassment, obsessive texting or phone calls, or other conduct that is considered abuse under the Family Code.
A parent who is found to have committed domestic violence is presumed to be incapable of sharing legal or physical custody. Family Code §3044 provides statutory guidelines for the Court in making orders in child custody/visitation cases when a parent has been found to have perpetrated domestic violence in the past five years.
A party who believes that he or she has been wrongfully accused of domestic violence should immediately seek the help of a competent family law attorney. It is not unusual for parties to use the restraining order process to make false allegations of domestic violence against the other party because there is a tremendous advantage to be gained by having a restraining order in effect against the other parent. Your attorney needs to understand how to properly defend you in a restraining order action by presenting proper evidence and testimony to contradict the allegations of domestic violence. Likewise, if you are the victim of domestic violence, your attorney must be prepared to submit sufficient evidence of domestic violence so that the Court will issue the appropriate domestic violence restraining orders.
A party may seek to renew domestic violence restraining orders prior to the time that they expire. The Court will consider the prior circumstances that resulted in a restraining order being issued, together with any new acts of domestic violence since that time. A party must file the request to renew restraining orders prior to the expiration of the existing restraining orders or the Court will deny the request.
It is important to understand the differences between domestic violence restraining orders and civil harassment restraining orders. California law defines the individuals who meet the requirements for each type of restraining order action. Domestic violence restraining order laws are available to individuals who have certain relationships (husband/wife, boyfriend/girlfriend, father/mother). A civil harassment restraining order is brought by individuals who do not have existing relationships with each other. The burden of proof in a civil harassment restraining order action is much higher than a domestic violence restraining order action. The parties seeking a civil harassment restraining order must prove by “clear and convincing evidence” that unlawful abuse has occurred warranting the issuance of a restraining order. You need to make sure that your family law attorney understands the complexities relating to the issuance and litigation of restraining order actions since the consequences are extremely important.
If you or your child is a victim of domestic violence, then it is important to obtain therapy from a licensed mental health professional. The Court will expect a custodial parent to take appropriate steps to protect his/her children from domestic violence. If that parent fails to do so, then this could be a grounds for losing custody of a child.