Domestic Violence / TROS

Domestic violence is one of the most significant and least understood areas of law under the Family Code.  A domestic violence matter can be brought by a person in a relationship with another.  Relationship includes people who were dating to people who were married to each other.  A domestic violence matter is not the same a civil harassment case.  No prior relationship is required for the court to exercise jurisdiction in a civil harassment case.  The implications of domestic violence are far reaching. It may result impact custody of your children, attorney fees, your right to carry a weapon, your freedom of movement, and your work.

The process of obtaining a protective order may be initiated by the police or sheriff responding to 911 or domestic disturbance calls.  They have the ability to obtain Emergency Protective Order at the site where they believe domestic violence has likely occurred. An Emergency Protective Order is usually made to last five days.  The matter could be dropped after five days or the process may be continued by the “victim” who seeks a Temporary Protective Order. 

A Temporary Protective Order in the Family Court may be obtained on shortened notice (ex parte) and is usually based on written declarations or applications.  This type of order usually but not always requires at least telephonic notice to the party to be restrained. Orders obtained in this manner are usually issued for no more than twenty one days.  Once a TRO is issued the court will generally set a hearing at which time both sides will present there case. If the court finds that domestic violence has occurred it may issue an order for three to five years.

The courts primary objective at an ex parte hearing is to keep the peace. Many temporary orders are issued in this way.  Many judicial officers error on the side of caution and issue orders that are not sustained when the matter is presented at the formal hearing. Do not assume that since the order was granted or denied at an ex parte hearing that you will obtain the same result at the formal hearing.

If the court finds that Domestic Violence has occurred it may limit your contact with your children, you may be ordered out of your home, and you will have to turn in or sell all your fire arms, which has grave implications for peace officers.

 
The Criminal Court System also processes cases of Domestic Violence under the Penal Code and a criminal case may run concurrently with a Family Law case.  Both courts may issues order about the same type of activity.  Sometimes those orders conflict, in which case the order issued by the Criminal Court takes precedence. 
Because the impact of having a retraining order issued is so significant your should never try to defend against such a request with out being represented by competent counsel.

A word of caution – many people feel that the Domestic Violence Prevention Act has gone overboard and is biased against alleged perpetrators.  I am sure that many who have been restrained would agree.

It is interesting that the official information sheet (DV-550-info) provided to alleged domestic violence perpetrators is titled “Get Ready for Your Hearing (For Restrained Person)” this form assumes that all requests for Temporary Restraining Orders will be granted. 

The body of the form contains the following statements:

The judge will decide.

• At the end of the hearing, the judge will say what the orders are.
• You will be served with a restraining order…

The form clearly assumes that if you have been accused of perpetrating domestic violence that you have. I have appeared at a number of domestic violence hearings and some judges in this county are very cautious in this area and grant Temporary Protective Orders.  On the other hand, the vast majority of judges in my county will hold an open and fair hearing when they hear the request for a permanent (three to five year) restraining order.

In most cases, the judge who hears the request for the permanent restraining order will not be the judge who heard the request for the temporary restraining order.  In my experience, none of the judges who hear these requests are significantly influenced by what another judge says.

Do not give up just because a temporary order was issued and you have not committed domestic violence.

Domestic Violence Basic Provisions

Family Code § 6220  states: “The purposes of this division are to prevent the recurrence of acts of violence and sexual abuse and to provide for a separation of the persons involved in the domestic violence for a period sufficient to enable these persons to seek a resolution of the causes of the violence.” 

Section 6211 defines domestic violence as “abuse” perpetrated by one against another within a certain class of people, who are either now involved or formerly involved in relationship. 


 The term ‘abuse’ is defined at § 6203 to include the following conduct:

•   (a) Intentionally or recklessly to cause or attempt to cause bodily injury.
•   (b) Sexual assault.”
•   (c) To place a person in reasonable apprehension of imminent serious  bodily injury to that person or to another.”
•   (d) To engage in any behavior that has been or could be enjoined pursuant  to Section 6320.”  [Emphasis added.]

The kinds of conduct described at subdivisions a, b and c of section 6203 are serious acts of violence, resulting in actual physical harm or reasonable fear of actual physical harm.  


Subdivision (d) of § 6203 points to § 6320, which enumerates the specific behavior which may be enjoined as follows: “molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning, including but not limited to, annoying telephone calls as described in Section 653m of the Penal Code, destroying personal property, contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party, and in the discretion of the court, on a showing of good cause, of other named family or household members.”
 
 California Penal Code § 653m is entitled “Obscene, threatening or annoying telephone calls.”   It provides:

“(a)  Every person who, with intent to annoy, telephones or makes contact by means of an electronic communication device with another and addresses to or about the other person any obscene language or addresses to the other person any threat to inflict injury to the person or property of the person addressed or any member of his or her family, is guilty of a misdemeanor. Nothing in this subdivision shall apply to telephone calls or electronic contacts made in good faith.

“(b)  Every person who, with intent to annoy or harass, makes repeated telephone calls or makes repeated contact by means of an electronic communication device, or makes any combination of calls or contact, to another person is, whether or not conversation ensues from making the telephone call or contact by means of an electronic communication device, guilty of a misdemeanor. Nothing in this subdivision shall apply to telephone calls or electronic contacts made in good faith or during the ordinary course and scope of business…”

Unless otherwise specified, all references are to the Family Code.