Q: When am I entitled to a Domestic Violence restraining order?

A: Whether actual or threatened acts of domestic abuse occur within or without a marital relationship, protective orders may be issued on an emergency basis (ex parte) or upon a noticed motion in an independent action commenced under the Domestic Violence Prevention Act. (hereafter “DVPA”) (California Family Code §6200 et. seq.).
A person seeking a DVPA order must fall into one of the categories described in Family Code §6211. These categories are: 1) a spouse or former spouse; 2) a “cohabitant” or former cohabitant; 3) a person with whom the perpetrator is having or had a dating or engagement relationship (a casual or social relationship is not enough); 4) a person with whom the perpetrator has a child; 5) a child of a party; and 6) blood relatives. If a person does not fit into one of these categories, then he or she must seek a civil harassment order in Civil Court.
There are no filing fees for seeking a DVPA order, and the local courthouse normally has a domestic violence workshop to help victims complete and file the proper forms. Unfortunately, even with the assistance of these workshops, the victim is still denied relief based on a lack of evidence or failure to properly submit evidence before the court. This is why an attorney is extremely important when seeking a DVPA order.

Q: What is a Civil Harassment Restraining Order?

A: In Civil Court, as opposed to Family Court, special procedures are available to provide quick relief to persons who have suffered harassment at the hands of others, if great or irreparable injury is threatened.
The California Code of Civil Procedure defines harassment as either: 1) unlawful violence (assault, battery or stalking other than in self-defense of others); 2) credible threats of violence (a statement or course of conduct willfully placing another in fear for safety of self and family member; or 3) a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys or harasses that person, serves no legitimate purpose and would cause a reasonable person to suffer substantial emotional distress, and in fact causes the victim to suffer such distress.
Keep in mind that this remedy cannot be used to prohibit constitutionally protected free speech or the right to petition the government for redress of grievances. However, there is no constitutional protection for harassing speech between purely private parties about purely private matters and on matters of purely private interest.
Because the victim has to seek a civil harassment order in Civil Court, there are certain legal procedures and requirements that may hinder a lay person’s ability to obtain the necessary relief. For instance, some courts require oral testimony, which means the victim must conduct direct and cross-examinations of witnesses.
Further, the victim must establish by “clear and convincing evidence” one of the three definitions of harassment listed above. This is the highest burden of proof in Civil Court and means the victim must present enough evidence that results in a reasonable certainty of the truth of the ultimate fact in controversy. To put a quantitative number to this definition the court must believe with approximately 80% certainty that the harassment took place.
Finally, according to the California Code of Civil Procedure, the prevailing party may be entitled to recover costs and attorney’s fees from the other party. The victim may be ordered to pay for the perpetrator’s costs and attorney’s fees if the victim does not successfully present his or her case. Consequently, an attorney can be helpful in avoiding any legal hurdles and ensure the victim’s case is properly and effectively presented before the court.

Q: What are Automatic Temporary Restraining Orders?

A: Once the Summons and Petition for Dissolution of Marriage have been filed with the San Diego Superior Court, the following standard restraining orders, which are set forth on the reverse side of the Summons, will be in full force and effect. These mutual restraining orders are issued automatically and apply in every case. These orders restrain the parties from:
a. Removing any minor child or children of the parties from the State of California without the prior written consent of the other party or an order of the court;
b. Cashing, borrowing against, canceling, transferring, disposing of or changing beneficiaries of any insurance or other coverage, including life, health, automobile and disability, held for the benefit of the parties and their minor child or children; and
c. Transferring, encumbering, hypothecating, concealing or in any way disposing of any property, real or personal, whether community, quasi-community or separate, without the written consent of the other party or an order of the court, except in the usual course of business or for the necessities of life.
You must notify each other of any proposed extraordinary expenditures at least five (5) business days prior to incurring these extraordinary expenditures and account to the court for all extraordinary expenditures made after these restraining orders are effective. However, nothing in the restraining orders shall preclude you from using community property to pay reasonable attorney's fees in order to retain legal counsel in the action.
If you have any questions with regard to the meaning of these restraining orders, please do not hesitate to contact Renkin & Associates.