CALL 9-1-1 IN CASE OF AN EMERGENCY
In an emergency situation, do not hesitate to call “9-1-1” to request immediate assistance from law enforcement. If the circumstances permit it, law enforcement can issue an Emergency Protective Order (referred to as “EPO”).
The EPO is not a long-term order for protection, but it will allow you some time to then submit a request to the Family Court for further protection. A domestic violence abuser can be prosecuted by the District Attorney’s Office, but such action is separate and apart from the relief you can seek in Family Court.
FAMILY LAW REMEDY FOR DOMESTIC VIOLENCE
The family law remedy for acts of abuse is a Domestic Violence Restraining Order (referred to as “DVRO”). A family law judge can issue a DVRO based on acts of:
· Physical violence
· Threats of violence
· Sexual assault
· Destruction of personal property
Harassment comes in many forms such as emotional and verbal abuse, disturbing your peace, stalking and even excessive phone calls, emails and/or text messages.
YOU MUST MAKE AN AFFIRMATIVE REQUEST TO THE COURT FOR A DVRO
A victim of domestic violence must submit an application to the Family Court in order to request protection. You can submit a request to the court for a DVRO with or without notice to the abuser. Notice is favorable, but not required (as notice to the abuser could place the victim in further danger).
NO FILING FEE
The Court does not charge a filing fee for a DVRO application or a response, if one is filed. If you intend to subpoena witnesses to come to the court hearing, statutory and/or expert witness fees will apply, unless waived by the Court.
WHAT IS YOUR RELATIONSHIP TO YOUR ABUSER?
Abuse is considered domestic violence when a certain relationship exists (or used to exist) between the victim and the abuser.
A DVRO would be the appropriate remedy when the victim and abuser are, or have been, in an intimate relationship such as:
· Domestic partnership
· Dating or used to date
· Living or used to live together
· Have a child together
A DVRO would also be the appropriate remedy is when it involves a relationship with a parent, grandparent, grandchild, sibling, stepparent or an in-law (although an in-law must be through your current marriage and not a prior marriage).
ALTERNATIVE REMEDIES FOR ACTS OF VIOLENCE
If your relationship does not fit within one of the categories above, the appropriate remedy may instead be a Civil Harassment Restraining Order, Dependent Adult Restraining Order, Elder Abuse Restraining Order or Workplace Violence Restraining Order.
Orange Coast Family Law specializes in Domestic Violence Restraining Orders only. If you are unsure about whether your relationship falls within one of those that qualify for a DVRO, contact us to inquire.
THE COURT HEARING PROCESS
At the initial court appearance, there is not an actual court hearing where testimony is taken. The judge will generally make a ruling to grant or deny a request for a DVRO based on the documentation submitted.
The court is looking to see if there is “reasonable proof of a past act or acts of abuse”. While it is helpful to have documentary evidence in support of your request for protection (such as a police report, pictures or text messages), it is not required. The judge can make a ruling based on a victim’s testimony or declaration alone.
If the judge denies your request for a DVRO at the initial stage of the process, the judge is required to state the reasons for doing so in the order. If orders are made (in the form of aTemporary Restraining Order, also referred to as a “TRO”), in part or in full, you will receive those court orders, in a certified form, on the day the orders are made.
You should keep a copy of your TRO with you at all times and extra copies at home, in your car, at work, and at your child’s daycare or school. You should also provide a copy to your local law enforcement agency.
After the initial stage of the DVRO process, the court will set a return court hearing date within a 21-day time window.
There are statutory timelines that apply to service of the TRO if the responding party was not in court and served with the TRO by the courtroom deputy. Law enforcement can assist in meeting the service requirement. Alternatively, you can use a process server or have someone you know (who is age 18 or older) assist with this step.
TYPES OF ORDERS INCLUDED IN A TEMPORARY RESTRAINING ORDER (“TRO”)
The types of orders the court can include in a TRO are the following:
1. Stay-away orders (from you, your residence, school, place of work, etc.) The court can extend the stay-away orders to family or household members specifically named in the order.
2. Move-out order. The court can order one party to move out of the common dwelling.
3. Order for rights to a mobile device and wireless phone account. The court can direct a cell phone provider to transfer the responsibility for the bill and the right to the telephone number to the requesting party to protect from cancellation of the phone account by the abuser.
4. Order to turnover firearms. An abuser who is under such an order cannot own, possess, purchase, attempt to purchase or receive a firearm or ammunition for the duration of the order.
5. Personal conduct order. The court can order an abuser to not “molest, attack, strike, stalk, threaten, assault (sexually or otherwise), batter, harass, telephone, destroy the personal property of, contact (either directly or indirectly, by mail or otherwise), come within a specified distance of, or disturb the peace of the other party.”
6. Order to record unlawful communications.
7. Order regarding care and possession of an animal.
8. Order for maintenance of insurance coverage.
9. Property control orders. This includes use, control and possession of named items of property.
10. Property restraint orders. This is only an option if the two parties are married or registered domestic partners.
11. Debt payment orders.
12. Child custody and visitation orders. These orders can include supervised visitation orders or a “no visitation” order until the next court hearing.
The following orders can be requested in your application for a DVRO, but will not be ordered until after a noticed hearing (meaning after the abuser has been served and provided with an opportunity to appear and respond at the return court hearing):
- Child support
- Spousal support
- Attorney’s fees and costs
- Batterer Intervention Program
THE EVIDENTIARY HEARING
The evidentiary hearing is basically the return hearing date on your DVRO application. The judge will revisit your application, review any response filed, consider updates either through testimony or a further written declaration, hear from witnesses and receive exhibits relevant to the proceeding. Documentary evidence is not required, but extremely helpful to the judge in corroborating the allegations made.
Lack of documentary evidence should not deter you from seeking a DVRO if you need protection. The judge will hear, review and consider the facts on a case-by-case basis.
A “permanent” (until expiration or further order of the court) DVRO can be issued for a period of up to 5 years.
The process for requesting a DVRO or responding to one can be overwhelming and paperwork intensive. We are experienced in dealing with domestic violence issues and can help ease an already very stressful and scary process.
Contact us for a free, confidential phone consultation to discuss the process in further detail. We can also provide you with referrals to domestic violence shelters if needed.