Protective Orders in General
Under California’s Domestic Violence Prevention Act (DVPA), a court may issue an injunction to prevent domestic violence. California Family Code § 6211 defines “domestic violence” to include abuse against the following:
- A spouse or former spouse;
- A cohabitant or former cohabitant;
- Someone the alleged abuser had a romantic relationship with;
- Someone the alleged abuser had a child with;
- A child of a party;
- Relatives within two degrees of separation.
“Abuse” is defined to include physical attacks, threats, stalking, harassment, and vandalizing personal property.
The DPVA authorizes courts to issue injunctions against domestic violence, including:
- Prohibiting contact between the alleged abuser and their minor child
- Allowing a minor child to reside at the family residence under the other parent’s custody
- Excluding the alleged abuser from living at the family residence
- Prohibiting the use or possession of firearms
A request for a domestic violence protective order is a technically distinct legal proceeding from divorce proceedings. However, court proceedings to determine child custody are closely linked to domestic violence prevention proceedings.
To determine child custody issues, California courts are required to consider factors that relate to the best interests of a minor child. Among the factors, a court will evaluate include a history of domestic violence, whether directed toward the child or their other parent.
Because the guiding principle behind child custody proceedings is the protection and preservation of a child’s safety and welfare, any history of domestic violence has significant weight in the eyes of the court.
Emergency Protective Orders
A request for a domestic violence protective order requires some level of due process. In general, domestic violence protective orders require notice and a hearing. However, if irreparable harm would result in the time it would take to properly observe standard due process requirements, a court may issue a temporary emergency protective order—also known as an “ex parte” protective order—before giving the respondent notice and a hearing.
The court will eventually hear arguments from both sides on the issue. An ex parte protective order can start as a temporary measure, but extend to a standing court order. For example, an emergency protective order excluding the alleged abuser from the family residence can become a standing order allowing the other party to live at home with their child. That order can serve as a basis for granting sole custody of the child to the other parent as well as the exclusive possession of the home after divorce.
Moshtael Family Law Provides Comprehensive Legal Services
If you need legal advice on a family law matter, such as child custody or finding protection against domestic violence, you should consult a member of our legal team at Moshtael Family Law. We take pride in delivering sound, comprehensive, and effective legal solution to your family law case—from divorces to paternity actions.
For more information about how Moshtael Family Law can help, call us at (714) 909-2561 or contact us online today.