Everything you need to know about domestic violence and the California Domestic Violence Prevention Act.
A 6-part series.
Part 1: What is domestic violence? And how do I start seeking my safety?
One area in which we are passionate about assisting clients is the area of domestic violence. While this may appear to be a fairly straightforward area of the law, it is not. To address the broad range of implications of the presence of domestic violence in a family law case, we presenting a 6-part blog series covering:
- What is domestic violence, what can I do to protect myself? What is the process of obtaining a restraining order?
- A restraining order has been filed against me, what should I do?
- Mutual Restraining Orders
- How does domestic violence impact child custody and visitation? What exactly is this “3044” finding, and what can I do about it?
- How does domestic violence impact spousal support and attorney fees?
- My restraining order is expiring… What can I do?
In today’s installment, we will focus on the basics, point 1: What exactly is Domestic Violence? What can I do to protect myself? What is the process of obtaining a domestic violence restraining order?
Over the past few decades, the California State Legislature passed the Domestic Violence Prevention Act (“DVPA”), and subsequent amendments and additions to protect individuals who have been the victims of domestic violence, also known as intimate partner violence. All civil (non-criminal) laws relating to the protection of victims of domestic violence are found in the Family Code, under the Domestic Violence Prevention Act (DVPA).
Before we dive into the topic of domestic violence from a family law perspective, let’s go over the basic definitions and concepts so that you can have a better understanding of the subject matter.
What is domestic violence?
According to the DVPA, abuse is defined as:
• intentionally or recklessly causes or attempts to cause bodily injury
• sexual assault
• placing a person in reasonable apprehension of imminent serious bodily injury to that person or to another.
Abuse is further defined by conduct that can be enjoined, or in other words, prohibited by judicial order.
These include physical acts such as: molesting, attacking, striking, stalking, sexually assaulting, battering;
harassing conduct such as: threatening, credibly impersonating, falsely personating, harassing, telephoning, including, but not limited to, making annoying telephone calls, destroying personal property, contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of;
and more vague conduct such as: disturbing the peace of the other party, and, in some cases, other named family or household members.
What does “disturbing the peace” mean?
This last category of abuse— ‘disturbing the peace’ — is a broad but critically important category. According to the DVPA, “disturbing the peace of the other party” refers to “conduct that…destroys the mental or emotional calm of the other party.”
This type of conduct comes in many different forms. It may occur physically, but it also allows the court to consider conduct that has only mental and emotional consequences to the victim.
Examples of conduct that may disturb someone’s peace include:
• Harassing/threatening via social media posts
• Harassing text messages and phone calls
• Using any type of technology to track, or impersonate another party
• Exerting coercive control that unreasonably interferes with a person’s free will and personal liberty.
Examples of coercive control include, but are not limited to, unreasonably engaging in any of the following:
(1) Isolating the other party from friends, relatives, or other sources of support.
(2) Depriving the other party of basic necessities.
(3) Controlling, regulating, or monitoring the other party’s movements, communications, daily behavior, finances, economic resources, or access to services.
(4) Compelling the other party by force, threat of force, or intimidation, including threats based on actual or suspected immigration status, to engage in conduct from which the other party has a right to abstain or to abstain from conduct in which the other party has a right to engage.
Relationships help determine whether conduct is considered domestic violence.
Just because any of the above conduct occurs, does not mean that domestic violence has occurred. In order for the above types of abuse to qualify as domestic violence, there must be a certain relationship between the parties.
The relationship that must exist may be any of the following:
• Spouses or former spouses
• Cohabitants or former cohabitants
• People who have dated or been engaged
• People who have a child regardless of romantic relationship
• A parent/child relationship
• Any blood relationship
The key here is that there needs to be a deeper connection between the individuals involved. The above relationships include a degree of intimacy that wouldn’t inherently exist with someone like a neighbor or co-worker. Even for a dating relationship, the court will want evidence to establish that there was frequent, intimate association primarily characterized by the expectation of affection or sexual involvement…” Family Code Section 6210.
What should I do if I think I’m experiencing domestic violence?
If any of the above actions and relationship definitions sound familiar to you, then your next question is likely to be, “this sounds like what I’m experiencing, but what can I do about it?”
People who have experienced intimate partner violence or domestic violence typically find it hard to acknowledge what has occurred, and are often uncomfortable asking for help. If this resonates with you, you are not alone.
If you believe that you have been the victim of abuse, it’s very important to find the mental and emotional support you need. There are a number of Bay Area resources that are specifically designed to support victims of domestic violence.
Seeking a Domestic Violence Restraining Order
Once you are ready, you can proceed with submitting an application for a Domestic Violence Restraining Order. It is advisable to proceed with an attorney. If you cannot afford an attorney, there are local organizations, such as the Law Foundation of Silicon Valley, that can pair you with a low-cost or pro bono attorney. If you do not feel comfortable or do not want to work with an attorney, you can use the Judicial Council database to download the right forms, or you can make an appointment with your court’s Self-Help Center to work with a court attorney as you complete the forms. No one from the Self-Help Center will be able to appear with you, but they can assist you with preparing the paperwork.
About the Restraining Order Request Form
The primary document necessary for all restraining order requests is the Request for Domestic Violence Restraining Order. Make sure you fill this out as completely, and with as much detail as possible. Once you have completed the forms necessary to make your request, the forms will be submitted to the court’s ex parte clerk. The initial Request for Domestic Violence Restraining Order, is a unique type of request. The court will make a temporary decision that is based solely upon what you file with the court, and will not take into consideration any input from the other party. You do not need to provide notice to the other party until you receive the temporary order from court.
How to Serve the Temporary Restraining Order
After you receive the temporary order, you are required to serve the other party with a complete copy of all documents you filed, and the emergency temporary order, which will include the date of the upcoming hearing.
Important: the other party has a right to have the first hearing within 21 days after filing; however, the other party also has the right to ask for one continuance to seek legal counsel or prepare for trial.
Gathering Evidence for Your Hearing
Once the other party is served, you can truly focus on preparing for the hearing. If you have videos, photos, or other evidence that you would like the judge to see, make sure to have multiple copies and be prepared to ask the judge how to present it. If you work with an attorney, the attorney will take care of the presentation of the evidence for you.
Possible outcomes in a Domestic Violence Case
At the conclusion of your evidentiary hearing, the judge will make a decision on your request. The judge needs to find that you (1) had one of the relationships engaged above, and that (2) abuse, as defined above, has occurred. The judge has the authority to make the following orders: deny the restraining order request, or grant the request for any length of time up to 5 years. If your request is granted, the court may make the following orders:
• Identify the protected person(s)
• Prevent the restrained person from:
– 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 movements.
– Contact, either directly or indirectly, by any means, including, but not limited to, by telephone, mail, e-mail, or other electronic means.
– Take any action, directly or through others, to obtain the addresses or locations of any protected persons.
– Peaceful written contact through a lawyer or process server or another person for service of legal papers related to a court case is allowed and does not violate this order.
• Order that the restrained person must stay a certain distance away from the protected persons:
– Physical body
– Additional protected persons and their school or job
• Issue a move out order, which requiring the restrained person to leave a shared residence
• Turn in any firearms/prevent the restrained person from purchasing a new firearm
• The protected person may record any contact or communications that violate the restraining order’s prohibited conduct
• Confirm who is responsible for caring for shared animals
• Issue custody and visitation orders regarding shared children
• Issue a child or spousal support order
• Require the restrained person to make payments towards shared debts
• Require the restrained party to not waste or abuse any shared property
• Require the restrained party to transfer control of a cell phone account to the protected party
• Require insurance to stay as is with no changes made by the restrained party
• Require the restrained party to pay or contribute to the legal fees and costs of the protected party
• Require the restrained party to participate in a batterer’s intervention program
• Any other orders the court deems necessary to effectuate and ensure the protection of the protected party.
Feel apprehensive? Remember, community support is there for you.
As you can see, restraining orders are a powerful tool to protect a person who has experienced abuse or intimate partner violence. Since there can be lingering trauma or fear for those who have experienced domestic violence, it’s understandable to be scared or overwhelmed with pursuing a domestic violence restraining order.
Fortunately, there are lots of community resources that provide support to victims of domestic violence. So, if you are experiencing domestic violence, you do not need to feel alone if you determine that pursuing a restraining order is necessary to keep you safe and give you space while you end your relationship.
Gomez Edwards Law Group can also help you with a domestic violence situation.
The attorneys at Gomez Edwards Law Group have extensive experience with advocating on behalf of victims of intimate partner violence. If you have any questions or are interested in legal representation, please send us an email or give us a call to discuss your options.
California Family Code Sections: 6200, “The DVPA”
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