Domestic Violence Restraining Orders
If you are a victim of domestic violence and fear for your safety, or the safety of your children, you can seek protection from the Court in the form of a Domestic Violence Restraining Order under the Domestic Violence Prevention Act (DVPA). The law defines abuse broadly and includes behavior that places a person in reasonable apprehension of imminent serious bodily injury. The Court is also able to able to issue as DVPA Restraining Order after receipt of evidence that a party has harassed, struck, threatened, assaulted (sexually or otherwise), hit, followed, stalked, molested, destroyed the personal property of, disturbed the peace of, kept under surveillance, impersonated (on the Internet, electronically, or otherwise), or blocked the movement of another. It is a common misconception that in order to get a Restraining Order, the party applying for protection must prove physical abuse. That is not the case.
An important consideration in pursuing, or defending, a DVPA Restraining Order request is the effect it can have on a parent’s custodial rights. Section 3044 of the Family Code provides that when the Court makes a finding that one party has engaged in an act of domestic violence against the other, or one of the parties’ children, that there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child. This presumption can be rebutted with certain evidence, but given the gravity of this presumption it is imperative to consult with experienced family law counsel if faced with an issue related to domestic violence.
Restraining Orders for Non-Marital Relationships
The DVPA does not limit its scope to only married couples. Under the DVPA, the Family Court can issue retraining orders against anyone who falls within one of the following relationships with the moving party: the victim and the abuser must have a close relationship (married, divorced, separated, dating or used to date, live together or used to live together as a couple), or be related (parent, child, brother, sister, grandmother, grandfather, in-laws). This means that you can ask the Family Court for a Restraining order against anyone with whom you are or have been married, dated, had a child with, or a member of your family.
The Court has the ability to issue the following types of orders in a Restraining Order. It is up to the Judge whether to issue some or all of the following:
The Court can order a person to not harass, attack, strike, threaten, assault (sexually or otherwise), hit, follow, stalk, molest, destroy personal property, disturb the peace, keep under surveillance, impersonate (on the Internet, electronically or otherwise), or block the movements of the protected party.
The Court can order a person not to contact, either directly or indirectly, in any way, including but not limited to, by telephone, mail, e-mail or other electronic means, the protected party.
Stay Away Orders
The Court can order a person to stay a specified distance away from the protected party and that person’s home, job, vehicle, school, other protected parties, and the school or child care of the protected party’s children.
Move Out Order
The Court can order a person to move out from the home of the protected party.
The Court can order that the restrained party can not own, possess, have buy or try to buy, receive, or in any other way get guns, other firearms or ammunition. The Court can also order that the protected party surrender any guns or firearms in his or her possession to law enforcement, or sell them to a licensed gun dealer.
Record Unlawful Communications
The Court can order that a protected party may record any communications from the restrained party that violate the restraining order.
Care of Animals
The Court can award the protected party sole possession, care, and control of specified animals and order the restrained party to stay a certain distance away from the animal and not take, sell, transfer, encumber, conceal, molest, attack, strike, threaten, harm, or otherwise dispose of the animal(s).
Child Custody and Visitation
The Court can issue child custody and visitation orders for the children of the protected and restrained party.
The Court can set guideline child support for children of the parties.
The Court can set spousal support for the parties, if they are married to each other.
The Court can order that the protected party be able to use, control, and possess certain property, such as a vehicle.
The Court can order the restrained party to pay certain debts, if appropriate.
The Court can issue an order that both the protected and restrained party must not transfer, borrow against, sell, hide, or get rid of or destroy any property, including animals, except in the usual course of business or for the necessities of life.
The Court can issue an order that both the protected and restrained party are to not cash, borrow against, cancel, transfer, dispose of, or change the beneficiaries of any insurance coverage held for the benefit of the parties, or their child(ren), if any, for whom support may be ordered, or both.
Attorney’s Fees and Costs
The Court can order the restrained party to pay the attorney fees incurred by the protected party in obtaining the restraining order.
Batterer Intervention Program
The Court can order the restrained party to attend and pay for a 52-week batterer intervention program, approved by the probation department, and show written proof of completion to the Court.
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Del Ponte & Hirz | Attorneys at Law
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San Jose, CA
Phone: (408) 294-4525
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