Getting a Domestic Violence Restraining Order
Domestic Violence Restraining Orders are something that I work with every day in my practice. I am often asked by people what the process is for obtaining a Domestic Violence Restraining Order through family court. The following is a step by step procedure that you can use to obtain your Domestic Violence Restraining Order. All cases are different so this is a general synopsis of what to do and if the Domestic Violence is serious please call the police or hire an attorney. I would love to speak with you about your case so please call me at 310-552-3500.
What is domestic violence?
Family Law Code Section 6211 and 6203 defines abuse and domestic violence.
To perpetrate abuse: intentionally or recklessly to cause or attempt to cause bodily injury, sexual assault, or to place a person in reasonable apprehension of imminent serious bodily injury to that person or another. It is important to consider a pattern of conduct when a person controls another psychologically. Domestic violence can be more than physically violence.
Who can file for a domestic violence restraining order:
The abuse must be perpetrated on a victim by any of the following to constitute domestic violence: A spouse or former spouse, roommate, someone in a dating relationship with, the father or mother of your child(ren), or a family member in the first or second degree.
What is the purpose of the state issuing restraining orders?
The purposes of this division are to prevent the reoccurrence of acts of violence and sexual abuse and to provide for a period of 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. Family Code Section 6220.
How do I get a restraining order against my spouse, boyfriend, girlfriend, or family member?
Filing for a permanent restraining order is a lengthy legal process. It is a two step-dance. First you must obtain a Temporary Restraining Order. Next there is a permanent Restraining Order hearing known as an evidentiary hearing where witnesses can be called. I suggest the following checklist when filing for a Restraining Order.
- Draft the necessary court documents and requesting a Temporary Restraining Order. These forms include but are not limited to, DV-100, DV-101, DV-105, DV-108, DV-109, DV-110, DV-140, and an Affidavit of Ex Parte Notice. You will want to make sure you are familiar with the DV-120 form (to serve on the other party) as well as the Reissuance forms (DV-115/116) and Order After Hearing (DV-130). WARNING: Other forms may be required given the circumstances of your case. Make at least three copies of the documents before taking them to court. One for the court, one for you, and one to serve on the restrained person. The content of the TRO documents is very important. At the TRO hearing, the court will generally just read your moving papers and decide based on the contents whether to grant the TRO or deny it.
- Once the proper legal documents are executed. You need to determine what day you are attending court. Timing is very important to the granting of a TRO. For example, if your boyfriend slapped your face six months ago and you are now broke up with no reoccurrence of domestic violence, the TRO might be denied. Once the documents are executed and you know what day you are attending court, you must determine what type of notice to provide the other party if any at all.
- Notice: At the TRO hearing, you are not required to give notice to the other party, if you are afraid for your life or have reasonable grounds to believe the other party will harm you in the interim or abscond with minor children than no notice may be necessary pursuant to Family Code Section 6300. Notice to obtain the initial TRO need not be by personal service. It suffices to give notice over the telephone for this proceeding if no basis exists for not providing notice. In essence, you have someone else simply call the potential restrained person by 10:00 am on the business day before the hearing, tell them the court, date, time, and court room to attend.
- Once the documents for a restraining order are all executed and notice has been perfected, file the proper documents in the proper court
- The court will either grant or deny the TRO then the court will set the matter for a Permanent Restraining Order Hearing.
- The opposing party must be given personal notice of the Permanent Restraining Order unless they are present in court and ordered served. The local Sheriff’s Department can assist with the service of the TRO. Once the TRO is served it becomes effective.
- File a proof of personal service with the court at least 5 court days before the scheduled Restraining Order hearing to prove the other party has been served.
- Show up to the Permanent Restraining Order hearing and present evidence at Restraining Order hearing why the protective order should be dismissed or made permanent. This includes the calling of witnesses and testimony. It is highly recommended to have a lawyer that has experience with Restraining Orders to advocate your position.
Can I get my spouse kicked out of the family home?
Yes, pursuant to Family Code Section 6321, you may qualify to have your spouse removed from your home by the police. This is commonly referred to as a “kick-out order.”
Filing for a Domestic Violence Restraining Order is very challenging. Feel free to call my office so that I can help you during this difficult time.