Domestic Violence Guide
Domestic violence seems like an easy enough concept to understand, but from a legal standpoint, it can be fairly complex. Certainly, domestic violence is physical abuse or aggression or threats of physical violence, generally within the home or between individuals with a very close relationship. However, domestic violence doesn’t need to be physical – it can also be verbal, emotional or psychological. Some behaviors that constitute domestic violence include physically hurting or trying to hurt someone intentionally, sexual assault, threatening harm or violence, and behaviors like stalking, harassing, and damaging or threatening to damage someone’s property.
Essentially, domestic violence occurs any time someone disturbs your peace or makes you feel reasonably afraid that you will be seriously hurt. If you are afraid or feel like have been threatened or you are being controlled by your partner (or someone else you live with or have a close relationship with), you will want to seek out protection as soon as possible.
A restraining order is a protective measure – it is a court order that can prevent your abuser from contacting you, or going near you or your child, your relatives or anyone who lives with you, or going near your pets and property. There are other things that can the court can prohibit an abuser from doing via a restraining order, including ensuring that the party does not have a gun, follows court orders on child custody and visitation, and complete a batterer intervention program.
In California, there is something called a CLETs restraining order. CLET stands for “California Law Enforcement Telecommunications System,” which means that law enforcement is made aware of the restraining order, and if a CLETS restraining order is in place, the party cannot be in possession of a firearm.
Common Legal Terms
- Emergency Protective Order (EPO): This is a restraining order that takes effect immediately. Law enforcement can ask a judge to issue an EPO at any time of day – meaning that when police respond to a domestic violence call, they can request an EPO right away and the judge can order the restrained party to leave the family home and stay away from children (if applicable) for up to 7 days.
- Temporary Restraining Order (TRO): This is a short-term restraining order. If you are a victim of domestic violence and an EPO is issued, you will need to go to the court within 7 days and request a TRO. A TRO typically serves to protect you for 20 – 25 days, until there is a court hearing.
- “Permanent” Restraining Order: At the time when your TRO is issued, your court hearing is also scheduled. During the court hearing, the judge can issue a “permanent” restraining order, although a permanent order isn’t truly permanent – this type of order typically only lasts for up to 5 years.
- Stay-Away Orders: An agreement in which parties agree to keep their distance from one another is called a stay-away order. While not enforceable by law enforcement, a stay-away order is a contract where one or both parties agree to stay away from each other.
Other Types of Restraining Orders
In addition to the types of restraining orders listed above, there are a few other restraining orders that exist, including the following:
- Civil Harassment Restraining Order (typically used for more distant relatives, your neighbors, roommates, or coworker).
- Elder or Dependent Adult Abuse Restraining Order (filed if the person being abused is 65 or older; or between 18 and 64 and a dependent adult).
- Workplace Violence Restraining Order (this is typically filed by an employer to protect an employee from violence, stalking, or harassment by another person).
Frequently Asked Questions Related to Domestic Violence & the Law in California
What kinds of relationships are taken into consideration in a domestic violence matter?
You are a married person or a registered domestic partner. You can also be divorced or separated (or previously in a domestic partnership), or you are dating or used to date or lived together while maintaining some type of relationship. Matters of abuse are also considered to be domestic violence if they occur between two parties who are parents to the same child or are closely related, such as parents, grandparents, siblings or in-laws.
Can I get a restraining order in California if I don’t live here?
Yes. If you are a victim of domestic violence, the court can use what is known as emergency jurisdiction to hear your case regardless of how long you have been in California or are planning to stay in California.
What does the court do in a CLETS hearing in regards to child custody?
The court’s job is to determine whether or not domestic violence occurred. If it did occur, the court may determine that the party accused of abuse may not be allowed to have custody, or may only allow for monitored visitation until there have been corrective measures and the party can prove that they are no longer a risk. The court’s first priority is to protect the abused party and any children who may be involved.
If I filed my divorce in the county I live in, can I file for a restraining order in another county?
Yes. In California, you can file for a restraining order in any county at any state courthouse. In certain situations, parties seek domestic violence action in a different county because they feel that they will be more successful. This is known as “forum shopping.”
What do I do if I was wrongly accused of domestic violence?
Being accused of domestic violence and being on the receiving end of a CLETs restraining order can not only impact your custody rights, but it can also impact your reputation and have an effect on your job. If you have been wrongly accused of domestic violence, you will want to consult with an experienced attorney who has expertise in this area of law as soon as possible.
Can I use the restraining order for my divorce?
No, you must file for divorce separately.
Is domestic violence a felony or a misdemeanor?
Domestic violence charges can be filed as either a misdemeanor or a felony. Several factors come into play in determining whether acts of domestic violence are felonies or misdemeanors, including the severity of the injuries, and if the person accused of domestic violence has a criminal past or a history of violence.
Can the court order one party to pay the other’s lawyer’s fees?
The “protected” person can get their lawyer’s fees paid for by the other party – the “restrained” person if ordered by a judge. A judge can also order the person who seeking the restraining order pay the other party’s fees if the restraining order is not granted.
Can I make an agreement with the other party to drop the restraining order?
No, only a judge can drop a restraining order.
Where should I file a domestic violence restraining order?
In California, you can file a restraining order at any state courthouse. In Los Angeles, for example, you can go to the courthouse downtown, or in Norwalk, or even the Long Beach Family Court in Orange County. This is to ensure that filing a protective measure is as easy as possible for the victim.
What Questions Should I Ask My Lawyer?
In domestic violence situations, it is critical to protect yourself and your family, and also to seek out legal support. An experienced yet compassionate lawyer can assist you in navigating the legal process and ensuring that you and your family are protected. When you are looking to hire a lawyer to help with your divorce, you should consider their background, and experience in this area of law. In addition, you may want to consider asking your lawyer the following questions:
- Do you have experience in situations like mine?
- Will you seek compensation for lawyer’s fees from the other party?
- If I want to get a divorce, can you help me?
- Can you guide me through the process of getting a permanent restraining order?
- Domestic Violence Hotline - https://humanoptions.org/
- Orange County Sherriff’s Department - https://www.ocsd.org/
- Orange County Social Services Agency - http://www.ocgov.com/gov/ssa/community/abuse.asp
- Orange County Women’s Shelters - https://www.womenshelters.org/cit/ca-orange
This guide was produced by Moshtael Family Law. If you have any questions or need some guidance or further information on domestic violence matters, please contact our Orange County divorce lawyers. We offer free consultations and look forward to helping you.
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