Restraining orders in California are orders which prevent an individual involved in a family law proceeding from taking a particular action. The two main types of restraining orders are the Standard Family Law Restraining Orders (sometimes referred to as “ATROs” or “Automatic Temporary Restraining Orders”) and Domestic Violence Restraining Orders.
At Happ Law Group, we represent individuals with family law cases throughout the County of San Diego who have issues related to restraining orders.
As described on the California Courts website, a domestic violence restraining order is an order that can protect someone from being physically or sexually abused, threatened, stalked or harassed.
For more information about domestic violence restraining orders, visit the California Courts Self Help Guide.
The Standard Family Law Restraining Orders are issued in divorce and paternity/custody cases. The Standard Family Law Restraining Order associated with divorce cases restraining both parties from removing any minor children from the state, disposing of property, changing insurances or creating any nonprobate transfers without the written consent of the other party or an order of the Court. The Standard Family Law Restraining Order associated with a paternity case only restrain parties from removing a minor children from the state.
If a domestic violence restraining order is issue, it can have an impact on how the court makes child custody and visitation orders.
After the issuance of a domestic violence restraining order, there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child. The abusive parent can attempt to rebut the presumption by demonstrating that sole or joint physical or legal custody is in the child’s best interest by showing, among other things, completion of a batterer’s treatment program, completion of alcohol or drug abuse counseling, completion of a parenting class, compliance with terms of probation or parole and compliance with the domestic violence restraining order.
A domestic violence restraining order can include no visitation rights for the abusive parent or restricted visitation rights (e.g. supervised visitation). These orders determine custody arrangements and visitation rights, preventing contact between the child and potentially abusive family members. They’re designed to create a secure environment for the child, putting their well-being first.
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Standard Family Law Restraining Orders associated with divorce cases are meant to help maintain the status quo while the divorce is pending. They can help prevent the improper disposal or hiding of assets during legal proceedings to ensure a fair distribution of property. They can also help ensure that both spouses maintain their existing insurance coverage.
Visit the California Courts Self Help Guide for details on property division.
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As discussed on the California Courts website, the process of applying for a domestic violence restraining order requires filling out certain forms explaining why protection is needed. There are no filing fees required to apply for a domestic violence restraining order.
Once the request for a domestic violence restraining order is filed, a judge will decide whether to issue a temporary domestic violence restraining order. The Court will also schedule a hearing in a few weeks to discuss whether a permanent domestic violence restraining order is necessary. Prior to that hearing, the request for the domestic violence restraining order and any temporary domestic violence restraining orders must be personally served on the other party.
Our domestic violence attorneys in San Diego assist victims in obtaining protection orders and those accused of domestic violence with diligent representation.
Once a domestic violence restraining order is obtained and personally served on the other party, it can be enforced. After personal service, if the other party violates the domestic violence restraining order, that individual can be arrested by law enforcement. Additionally, a contempt motion could be filed by the protected party for violation of the domestic violence restraining order. A contempt motion is quasi-criminal in nature, therefore, the party violating the domestic violence restraining order could face jail time and/or fines.
Given the severe consequences of violating a domestic violence restraining order, it is important for individuals subject to a domestic violence restraining order to comply strictly with all conditions of the domestic violence restraining order, such as no-contact or stay-away orders.
In California, a judge has broad discretion to the duration of a domestic violence restraining order. An initial domestic violence restraining order could be issued for up to 5 years.
Prior to the expiration of a domestic violence restraining order, a protected party can seek a renewal of the domestic violence restraining order, which can be extended for 5 more years or even permanently.
Renewal of a domestic violence restraining order is determined by the judge by assessing whether the protected party has a reasonable apprehension of future physical abuse if the current protective order expires. The protected party does not need to show new abuse.
The California Courts website specifies if the protected party wants to change or end their domestic violence restraining order, they can make such a request.
To modify or terminate an order, a request must be filed with the court, stating the reasons for the change. The court will review the request and then determine whether changing or ending the domestic violence restraining order is appropriate.
Understanding the nuances of family law restraining orders in California is essential for anyone navigating these legal waters.
It’s always best to seek professional legal advice to navigate these situations. Contact us today for more assistance.
What are the standard family law restraining orders in California?
The Standard Family Law Restraining Orders are issued in divorce and paternity/custody cases. The Standard Family Law Restraining Order associated with divorce cases restraining both parties from removing any minor children from the state, disposing of property, changing insurances or creating any nonprobate transfers without the written consent of the other party or an order of the Court. The Standard Family Law Restraining Order associated with a paternity case only restrain parties from removing a minor children from the state.
How does one obtain a domestic violence restraining order?
To obtain a domestic violence restraining order, one must complete and file specific court forms detailing the abuse. These forms are available at local courts or online. The process will include a court hearing, and there are no filing fees for domestic violence restraining orders.
What are the consequences of violating a domestic violence restraining order?
Violating a restraining order in California can lead to criminal charges. Penalties include fines, imprisonment, or both. Violating an order can also negatively affect related legal cases, such as child custody disputes.
Can domestic violence restraining orders be modified or terminated?
Restraining orders in California can be modified or terminated.. A request must be filed with the court, and a judge will review it to determine if the modification or termination is appropriate.
What role do domestic violence restraining orders play in child custody and visitation cases?
In child custody and visitation cases, domestic violence restraining orders can be used to protect children from potential harm. They can dictate custody arrangements and set conditions for visitation, prioritizing the child’s safety and well-being. These orders help ensure that children are not exposed to abusive or unsafe environments.
DISCLAIMER: This information is made available by Happ Law Group P.C. for educational purposes only as well as to provide general information and a general understanding of California law, not to provide specific legal advice. If you are in need of advice about your specific situation, you should consult with a California family law attorney.
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