Domestic Violence Attorneys in Orange County
Restraining Orders: Protecting Clients Facing Abuse
Within the realm of family law, domestic violence can be boiled down to
disturbing someone’s peace. You can ask for a domestic violence
restraining order in family court if, 1) you have a close relationship
with the person that you’re asking the restraining order against,
and 2) you are being abused or threatened to be abused. Assuming the two
conditions are met you can seek domestic violence restraining orders.
Examples of a close relationship:
- You are a married person or registered domestic partner
- You can be divorced or separated, i.e. previously married or previously
in a domestic partnership
- You are dating or you used to date
- You live together or used to live together under the same roof and you
had some form of relationship
- You are the parents of a child together
- You are closely related such as parent, child, brother, sister, grandmother,
grandfather, or in-laws
Helping You Get a Restraining Order
There might be a variety of reasons you might choose to seek a restraining
order. Whether you’re a survivor of domestic violence, a victim
of stalking or harassment, or protecting an elder or dependent adult from
caregiver abuse, Moshtael Family Law can provide you with fast, reliable
representation in obtaining your restraining order. We’ll walk you
through the different types, as well as the eligibility requirements,
and help you throughout the process of getting the court order. In cases
of emergency, we can assist you with how to attain an emergency protective
order for immediate protection.
Disturbing Someone’s Peace
Disturbing someone could mean sending 100 text messages to somebody you
have a close relationship within one day and they continuously tell you
to stop but you do not. You have disturbed their peace, which could be
Domestic Violence. What if you sent 10 text messages? It depends, what
did you say? Was it “Hi, I love you,” “Hi I’m
going to kill you,” or “Hi I’m coming over”?
The point is domestic violence is not just physical violence. It is no
longer confined or seen as just the threat of physical harm or actual
physical harm to another individual. It can be in the form of emotional
abuse or a pattern of behavior that causes the other person’s peace
to be disturbed.
Making someone reasonably afraid that they’re about to be seriously
hurt, like threatening or promising to harm somebody, can be domestic
violence. Behavior that is harassing, stalking, threatening, or hitting
someone, or disturbing somebody’s peace, destroying somebody’s
personal property, or any of the above can qualify as domestic violence.
Where to File a Domestic Violence Action
It is important to know any courthouse in California can take your domestic
violence action. If you are a resident of Orange County but you believe
your victim of domestic violence you can go file in Long Beach Family
Court. If you live in LA county you can go to Downtown to file your action,
you can go to Norwalk or any California courthouse because the law wants
to make numerous forums available for the victims of domestic violence.
It makes sense because typically if someone is filing for DV they are
running away from a perpetrator who is likely to reside in the county
they used to live in.
The flip-side is that this encourages forum shopping. For example, Norwalk
has a smaller courthouse and Downtown LA has a larger courthouse. Norwalk
has a greater likelihood of favoritism, Downtown LA not so much. To some
extent depending on the reputation of a courthouse or a reputation of
a judge if you’re being told that you can file in any county or
courthouse to seek protection it does somewhat encourage forum shopping
because you might have a greater likelihood to succeed in one courthouse
versus the other. Another fact: even if you have already filed your divorce
and your divorce is filed where you live you can still file my DV action
in another county because you think you have more chances at succeeding
with that courthouse.
Ultimately, your case may be brought back to the county in which you live
but for the initial temporary restraining order that one seeks, one can
go to any courthouse to get that assistance.
Filing for Domestic Violence as a Non-Resident
What if you are not a California resident, but you are here, can you ask
for help? Yes, you do not have to be a California resident. The court
can exercise emergency jurisdiction because of domestic violence and if
you are traveling from another state to California and you allege you
are victim of domestic violence as you are going through you can go file
and ask for a restraining order to protect yourself even if California
may not have jurisdiction it may exercise emergency jurisdiction to rule
under domestic violence.
Impacts of Domestic Violence Orders
Domestic violence orders can have an enormous impact on your job, your
ability to work, your relationship with law enforcement, your relationship
with your child, and much more.
Domestic violence in the context of
child custody is intended to be used as a shield, not a sword and often the courts are
required to look at the fact pattern to determine whether they are truly
dealing with a victim of abuse or whether that individual is in the courthouse
to gain an advantage on custody.
Why is getting a domestic violence restraining order, or what we call a
CLETS order, something a family law litigant would want? If you’re
a protected under a CLETS order and there is custody involved then the
person against whom the restraining order is issued, if it’s a permanent
CLETS order, has to deal with Family Code section 3044 which is a presumption
that you are not entitled to have contact with your child if you have
committed Domestic Violence or perhaps you will get monitored visitations
so you get to see your child in a controlled environment, perhaps for
a few hours at a time and you may take a year anger management courses,
any unlawful communications will be recorded, you will have to turn in
all your any firearms to either a gun dealer for safekeeping or to the
police, you will likely be asked by the court to take co-parenting classes
and it will take you, in our experience depending on the case, somewhere
between three months to a year to slowly make your way back up to get
unmonitored visitations and ultimately a significant amount of time with
your child.
Hence why we don’t want to use it as a sword to gain an advantage
in custody litigation; instead we want to protect people who need help
and who have been abused. They deserve protection from their abuser assuming
that is in fact what occurred.
That’s why a domestic violence action can have a tremendous impact
on custodial time.
Once you get a CLETS order when a law enforcement officer pulls you over
they can see those orders and they will enforce a CLETS order as in you
can get booked and jailed if you violated a domestic violence restraining order.
How about the impact on your job? What if you work in a securities firm
that handles other people’s money. Can this be an issue to your
license? Will you lose it? You probably should see a lawyer that has experience
in that field. How about if you are a school administrator. Does having
a domestic violence restraining order impact your ability to work? Probably.
What if you work in a woman shelter? Absolutely. So depending on the license
you have and depending on who you work for having, a restraining order
issued against you can impact your job. What if you are a law enforcement
officer? We have had clients who are police officers and who have been
the subject of restraining orders and that can impact their ability to
keep their position. For instance, how are you supposed to be a police
officer if you have to turn in your firearms? Are you going to turn it
in the department in which you work yourself to your buddy? Maybe you’re
going to be on desk duty for a very long time.
The point is, we do want to make sure that people are protected; now there
might be alternative solutions such as a stay-away order as opposed to
domestic violence prevention orders. A stay-away order is a contract between
two people where one or both parties agree to stay away from each other.
To be fair, the police will not enforce a stay-away order. It does not
have the same kind of teeth a CLETS order has, but if the victim of domestic
violence would agree and would feel safe with a stay-away order that perhaps
is combined with some form of therapeutic treatment for the perpetrator
of domestic violence to get help with their anger or behavior issues that
may be an alternate solution. Why? Because when that perpetrator of domestic
violence loses their job as a result of the CLETS order, at what cost
do you see the protection? Now, this may not be an appropriate way of
thinking about it but if we focus on the victim of domestic violence if
they get the protection of a CLETS order but then the person who provided
for that family no longer makes money how is child or
spousal support going to be paid? Has the person seeking the restraining order thought
about the consequences of seeking a CLETS order and especially if they’re
seeking it as a sword as opposed to a shield to gain an advantage for
custody. Have they considered whether it is in the best interest of your
children not to get
child support if the person loses their job?
When the court issues a CLETS order the court has the discretion to have
it last between three to five years so the impact of that order will last
for years.
An Alternate Solution to a CLETS Order
An alternate solution to a CLETS order that in our view can protect the
abused individual can be, assuming they are comfortable with this solution,
the combination of the following:
- Entering into a contract that stipulates a stay-away order,
- Provide for what can call “safety bumpers” meaning address
the conduct that led to the circumstances and have a professional involved
(anger management therapist, mental health provider if the person needs
therapy, etc),
- If necessary, order a 730 Child Custody Evaluation if a child is involved.
Why? Because if there is an allegation that there is a deeply rooted issue
of violence or anger then it is not sufficient to just seek a restraining
order. It would probably be appropriate to seek the help of an independent
expert to look into the situation from all angles and give a recommendation
to the court whether or not they believe the conduct of the perpetrator
amounts to domestic violence and whether to conduct in question should
be a basis for minimized custodial time.
You do not need a CLETS order to have supervised visitations. You could
have no domestic violence order but because somebody’s behavior
is still inappropriate and not in the best interest of a child you can
still get monitored visitation orders. If the goal is to monitor that
person’s conduct to ensure that a child is safe you can still achieve
that without a CLETS order.
What the Court Does in a CLETS Hearing
The court will ask whether domestic violence occurred. If the answer is
“yes,” Family Code section 3044 presumption applies, i.e.
you don’t get to spend time with your kid and/or you get monitored
visitation until you take the necessary steps to prove the court otherwise.
If the answer “no,” the court does a standard best interest
determination to determine what custody orders are appropriate.
If you are a victim of domestic violence, ensuring that you, your children,
and your livelihood are protected is of the utmost importance. At Moshtael
Family Law, we represent both male and female victims of domestic violence
to ensure that the cycle of abuse is broken and they can resume their
lives in a healthy, safe environment. Whether this is achieved through
a restraining order, a granting of sole legal and physical custody of
any children involved, or other means, our experience, and sensitive legal
team can guide you through the steps required to achieve legal resolution.
Unfortunately, not all domestic violence claims are truthful and are brought
to gain an advantage in other areas of a divorce such as
child custody disputes. When such serious but false accusations are levied against you,
we will put the accuser to the task of proving such allegations and help
ensure that an unfair advantage is not achieved.
Contact our Orange County family law attorneys online or by calling
to schedule your consultation.
