Intimate partner violence disproportionately affects certain populations, particularly pregnant women, American Indian/Alaska Native and African American/black women, and sexual minority groups, according to KidsData.org, a program of the Population Reference Bureau that promotes the health and wellbeing of children in California.
What Qualifies As Domestic Abuse In California?
“Abuse” in California is more than physical violence, according to California Family Code. If you are seeking a domestic violence restraining order lawyer to defend you against allegations of abuse, or are seeking an attorney to assist you in seeking a domestic violence restraining order against your spouse or intimate partner, Lewellen I Strebe I Hopper Family Law Group can help.
What Is Abuse?
Domestic violence, also referred to as intimate partner violence (IPV), dating abuse, or relationship abuse, is a pattern of behaviors used by one partner to maintain power and control over another partner in an intimate relationship, according to the National Domestic Violence Hotline.
Domestic violence laws in California define “abuse” in Family Code 6203 as:
- To intentionally or recklessly cause or attempt to cause bodily injury.
- Sexual assault.
- To place a person in reasonable apprehension of imminent serious bodily injury to that person or to another.
- To engage in any behavior that has or could be enjoined pursuant to Section 6320.
How Does California Law Define Abuse?
In some cases, victims may not have suffered a physical injury but experience profound emotional abuse from their current or former partner. The abused person doesn’t realize the legal definition could potentially save their life or provide an outlet to escape an abusive situation.
California Family Code 6320 was revised in January 2021 to expand the definition of abuse to allow victims of domestic violence to seek out a domestic violence restraining order for conduct that results in “disturbed peace.”
Under the statute, “Disturbing the peace of the other party” refers to conduct that, based on the totality of the circumstances, destroys the mental or emotional calm of the other party. This conduct may be committed directly or indirectly, including through the use of a third party, and by any method or means including telephone, online accounts, text messages, or other electronic technology. Conduct that can amount to “disturbed peace” can include “coercive control” which is a pattern of behavior that in purpose or in effect unreasonably interferes with a person’s free will and personal liberty.
Family Code 6320 provides examples of behaviors that could amount to coercive control:
- Isolating the other party from friends, relatives, or other sources of support.
- Depriving the other party of basic necessities.
- Controlling, regulating, or monitoring the other party’s movements, communications, daily behavior, finances, economic resources, or access to services.
- Compelling the other party by force, the 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.
In order for a victim of abuse to obtain a domestic violence restraining order, the legal standard they must demonstrate is “reasonable evidence of prior acts of abuse” with the legal showing being “preponderance of the evidence” meaning it is more likely than not what the victim is claiming did occur. Because DVRO proceedings can often become “he said / she said” it is important to hire an experienced domestic violence attorney.
The Types of Restraining Order
Victims of abuse (called “Protected Parties” in a domestic violence restraining order) have the ability to request urgent relief from the Court. Often, temporary orders can be granted within one to two business days of submitting a request for DVRO. There is no filing fee when submitting a domestic violence restraining order request.
Emergency Protective Order (EPO)
An EPO is a type of restraining order that only law enforcement can ask of a judge. A police officer who answers a domestic violence call and who believes that abusive behaviors have occurred which rise to the level of a crime, can ask a judge for an emergency protective order at any time – day or night to protect a victim of abuse on an emergency and short term basis.
Emergency protective orders when granted, start right away and can last up to 7 days. The judge can order abusive partners to leave the home and stay away from the victim and any children for up to a week, allowing the victim enough time to go to court and file for a temporary domestic violence restraining order.
Temporary Domestic Violence Restraining Order (Temporary DVRO)
When a victim of abuse files a Request for Domestic Violence Restraining Order, they are required to fill out certain paperwork and provide a narrative explanation of the abusive behaviors they have experienced. The Request requires the victim (called the “protected party”) to detail incidents in reverse chronological order. The protected party can request the Court order the abusive party (called the “restrained party”) to make no contact with the protected party, and to stay a certain distance away from the protected party. If the parties have children, the court can grant temporary child custody and visitation orders. If the parties cohabitate, the Court can issue “kick out” orders to remove the restrained party from the shared household. If the reviewing judge believes the protected party has articulated incidents of abuse within the definition under the statute, a temporary restraining order will often be granted awarding the protected party. The Court will then set an initial hearing on the Temporary DVRO within 15-60 days where the Restrained Party will be provided an opportunity to respond to the allegations.
The procedure followed at the initial hearing varies on a county-by-county basis. In some counties the protected party is expected to be prepared to present evidence and conduct a “trial” on their requests at the initial hearing. In some counties the initial hearing is administrative in nature and the Court only is concerned with determining what issues are contested and how much time the parties estimate is needed to conduct a trial, and the court will extend the temporary orders pending the trial date. In other counties the court may assist the parties in triaging child custody and visitation concerns first and deal with the domestic violence restraining issues subsequently. Because of this if you find yourself involved in a domestic violence restraining order proceeding, it is important that you look to consult with and retain legal counsel very early in the case, as your rights and claims could be adjudicated at the initial hearing.
“Permanent” Restraining Order (aka “Restraining Order After Hearing”)
What Happens If I Receive a Restraining Order Against Me?
The impacts on a Restrained Party of receiving a Restraining Order are significant and often immediate. Existing Child custody orders can be immediately modified and replaced with significant restrictions such as requiring professional supervision by and at an agency or suspension of visitation rights. The restrained party to a DVRO can be immediately evicted from their shared residence with the Protected Party. After a substantive hearing, if a Restraining Order After Hearing is granted, the restrained party could be ordered to pay the protected party’s attorney’s fees. The restrained party can be ordered to complete a 52-week batterer’s intervention course and take on other courses such as anger management. If the parties are divorcing, the protected party can request that their retirement accounts which are otherwise community property not be divided and awarded to the restrained party.
If the restrained party is otherwise entitled to spousal support, the protected party can point to the domestic violence as a basis to not be ordered to pay to support their “abuser.” Finally, a restraining order after hearing creates a rebuttable presumption under the Family Code that awarding sole or joint custody (physical or legal) to the restrained party is contrary to their minor child(ren)’s best interests. As such, if you are a Restrained Party to a pending domestic violence restraining order proceeding you should seek out competent legal representation to defend against the charges and penalties being faced, such as the attorneys with Lewellen Strebe & Hopper P.C.
Hiring An Experienced Domestic Violence Lawyer
People of any race, age, gender, sexuality, religion, education level, or economic status can be victims or perpetrators of physical and emotional abuse.
At Lewellen I Strebe I Hopper Family Law Group, our shareholders Michael R. Strebe Esq. and Jason P. Hopper have a significant portion of their practice areas focusing on representing parties involved in domestic violence litigation.
Our legal team can help clients navigate child custody and restraining order cases stemming from domestic abuse.