Introduction to Domestic Violence Restraining Orders

Julianna Lee Supervising Attorney Legal Aid Foundation of Los Angeles

LAFLA’s Supporting Families Workgroup

We do not usually assist with the following: Adoptions Guardianship Cases (limited exceptions) Probate Matters Dependency Court (Children’s Court): Removes jurisdiction of custodial issues from Family Court. Support only issues: Self-Help; FLF; Child Support Services Department (CSSD).

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Courthouse Clinics Toll Family Law Counseling Center—Los Angeles Superior Courthouse 111 N. Hill Street, Room 245 Los Angeles, CA 90012 Clients are seen Monday, Wednesday, Friday from 8:30 a.m.- 3:00 p.m. Closed Tuesdays & Thursdays. No appointments, walk-ins only. Priority is given to domestic violence, restraining orders, and child abduction and concealment. Domestic Violence Clinic—Long Beach Long Beach Courthouse 275 Magnolia Avenue, Room 1004 (1st floor, behind Convenience Store) Long Beach, CA 90802 Clients are seen Monday, Wednesday & Friday; intake at 9:00 a.m. Closed Tuesdays and Thursdays. No appointments, walk-ins only. Priority is given to domestic violence restraining orders, and child abduction and concealment cases.

Domestic Violence Clinic—Santa Monica Santa Monica Courthouse 1725 Main Street Santa Monica, CA 90401 Clients are seen Mondays through Fridays, 8:30 a.m.-11:00 a.m. Assists clients on a walk-in basis with restraining orders.

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Main Types of Family Law Cases

Domestic Violence Restraining Orders Dissolution (divorce), Legal Separation (still married), and Nullity

(annulment: unsound mind; fraud; duress; physical incapacity; prior existing marriage thought to have been terminated by death or divorce.)

Uniform Parentage (Paternity) Custody and Visitation: Not stand alone cases

Child Abduction/Hague Cases Jurisdictional Contests: UCCJEA

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Domestic Violence Stats About 1 in 4 women and nearly 1 in 10 men have experienced

contact sexual violence, physical violence, and/or stalking by an intimate partner and reported some form of IPV related impact.

As the total number of homicides in LA county has dropped over the years, there’s been an increase in the number of women killed, totaling 114 last year, the highest number since 2010.

Domestic violence is the 3rd leading cause of homelessness in the U.S. In LA, DV survivors make up 30% of the homeless population. In the past year, the number of women experiencing homelessness in LA due to DV increased by 28%.

In 2018, there were 166,890 DV related calls for assistance to law enforcement. Of those 76,707 involved a weapon.

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SOURCES: https://www.cdc.gov/violenceprevention/intimatepartnerviolence/fastfact.html https://www.latimes.com/projects/women-violence-homicides-increase-death-murder/ https://www.downtownwomenscenter.org/2019-homeless-count-numbers/ https://openjustice.doj.ca.gov/exploration/crime-statistics/domestic-violence-related-calls-assistance

LA Superior Court

In 2018, there were 21,630 applications for a

Domestic Violence Restraining Order.

The vast majority of DV survivors do not have an attorney.

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Different Types of DV Restraining Orders Emergency Protective Orders (EPO), see CA Family Code (“CFC”) §6250 Issued by law enforcement, upon verbal order by judge on call 24/7, when person determined to be in immediate and present danger of DV. Lasts 5-7 days (the earliest of 5th court day or 7th calendar day) per CFC §6256 . Civil Temporary Restraining Order (TRO), see CFC §6320 et seq. Preliminary/Temporary restraining order; Lasts up to 21 days – until service and court hearing. Civil Restraining Order After Hearing (ROAH), see CFC §6340 et seq. Good for up to 5 years, CFC § 6345; and Renewal within 3 months of expiration for 5 years or permanently, without a showing of further abuse. Juvenile Restraining Order Issued by dependency court, under the same Domestic Violence Prevention Act; Family court cannot make orders re: the children with juvenile case pending Criminal Protective Orders (CPO) Issued for misdemeanor or felony spousal abuse for up to 10 years; May be issued pending trial or post trial as a condition of probation; and If no expiration date listed, expires 3 years after date of issuance or when probation terminates.

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Under the Domestic Violence Prevention Act, CFC § 6203, abuse is defined as any of the following: Intentionally or recklessly causing or attempting to

cause bodily injury; Sexual assault; Placing a person in reasonable apprehension of

imminent serious bodily injury to that person or to another; or

Engaging in any behavior that has been or could be enjoined such as molesting, attacking, striking, stalking, threatening, battering, harassing, telephoning, destroying personal property, contacting the other by mail or otherwise, disturbing the peace of the other party.

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Abuse need not be Physical Conness v. Satram,(2004) 122 Cal.App.4th

197: Harassing phone calls, letters, false reports re parole violations.

Marriage of Nadkarni,(2009) 173 Cal.App.4th 1483: Defines disturbing the peace (he hacked into her emails and forwarded some of her attorney-client privileged confidential communications.)

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Required Relationship, per CFC §6211

Spouse or Former Spouse; Registered Domestic Partner or Former Registered

Domestic Partner; Cohabitant/Former Cohabitant (not merely

roommate); Past or Present Dating/Engagement Relationship; Parties who have children together; Child of Party; or Relatives within 2 genealogical degrees (by

blood, marriage, or adoption): parents, grandparents, siblings, children, & grandchildren.

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What If I Don’t Have The Required Relationship?

Civil Harassment

Workplace Violence Elder/Dependent Adult Abuse

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Who Can Be Protected? Person requesting the domestic violence

restraining order and their family or household members who need protection.

Minors, 12 years and older, can file a domestic violence restraining order.

A Guardian Ad Litem will need to file on behalf of minors under 12 years of age, CFC §6229.

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What type of orders can you get? Stay Away Orders (inc. Protection of Others Listed) Cannot have contact or go near you, your children, and other

family/household members (if included): Standard orders are 100 -yard stay away from you, your children, your home, your school/workplace, your vehicle, the children’s school or childcare, and other places that you frequent, such as a relative’s home, or possibly a place of worship.

Residence Exclusion or Move Out Orders Firearm Restriction Record Unlawful Communications Pets: Possession and Stay-Away Order Child Custody, Visitation, and Support Property Control & Debt Payment Freeze Marital Assets and Spousal Support (if married) Attorney’s Fees Batterer’s Treatment Program “Other Orders”

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The Process of Getting a RO: Request RO and TRO

(temporary RO) Judge decides same day

whether to grant TRO

Whether or not TRO

granted, given a Court day for hearing

Serve the opposing party before the next

hearing

Attend hearing where Judge

decides whether to grant or deny the RO

If granted Court gives you ROAH

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Personal Service of the Restraining Order Required Someone who is at least 18 years old – NOT THE PERSON REQUESTING THE RESTRAINING ORDER or anyone protected by the order – must personally “serve” the person to be restrained with a copy of the order and attached requesting documents. The sheriff will do it for free, but you have to complete one of their forms, providing information re where and when to find the restrained party. Signed Proof of Service must be filed with the Court.

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Duration of Domestic Violence Restraining Orders

The Ex Parte Temporary Restraining Order lasts for approximately 20 days until the next scheduled court hearing.

At the hearing, the Court determines whether there is a basis for a restraining order that will last for up to 5 years.

Child custody, visitation, support, and spousal support orders may be issued; do NOT expire when the restraining order ends.

Failure to state expiration date: Order expires 3 years from date of issuance (CFC § 6345(c).)

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Access to Justice for Domestic Violence Victims

FREE to apply for a domestic violence restraining order.

An applicant is NOT required to show proof of immigration status. Immigration status should NOT a consideration in granting domestic violence restraining orders.

If interpretation is need, the Court will provide a FREE interpreter to the restraining order applicant.

FREE service of orders by sheriff.

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Renewal of ROAH , CFC §6345(a)

Request for renewal may be brought within 3 months before expiration of ROAH;

Orders are renewable for 5 years or permanently without a showing of further abuse; and

Court must find by preponderance of evidence that Petitioner entertains “reasonable apprehension of future abuse.”

Ritchie v. Konrad, (2004)115 Cal.App.4th 1275: If the order is allowed to expire, the Petitioner would be placed in an “immediate and present danger of abuse.” (Remanded with instructions for further inquiry to assess danger.)

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For Survivors of Domestic Violence: Special Visitation Issues SAFETY is the KEY Different ways to ensure safety:

Professionally Supervised Visitation (where unsupervised visitation would be a threat to the safety of the children.)

Neutral Exchange/Public Places (police lobby, McDonald’s: get receipt.)

Monitored Visitation (non-professional, usually family) Therapeutic Intervention: e.g.: Reunification Counseling Curbside exchange.

What if batterer refuses to return the children after visitation?

Essential to have a Court order for police to enforce. What if the other parent uses drugs or alcohol?

Must provide evidence Drug testing AA meetings

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Rebuttal Presumption Based on Violence, CFC §3044 Rebuttal Presumption Based on Violence, FC §3044(a): Custody to perpetrator of DV* is detrimental to the best interest of child. *Based on DV conduct/finding/conviction within previous 5 years Factors to considered in overcoming presumption include: (1) Best interest; frequent and continuing contact (2) Successful completion of batterer's treatment program (3) Successful completion of drug or alcohol program (4) Successful completion of parenting class (5) Compliance with probation/parole terms (6) Criminal Protective Order or DVPA and compliance with terms/conditions (7) Where DV perpetrator has committed any further acts of DV

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Organize Your Documents! Keep complete copy of all court records. Organize in file, oldest at bottom, newest

at top. Tab everything. Be sure to copy both sides of court forms. Keep relevant related documents with

file: birth certificates, leases, police reports or criminal records not yet filed.

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Julianna Lee Supervising Attorney LEGAL AID FOUNDATION OF LOS ANGELES 1550 W 8th Street Los Angeles, CA 90017 Phone: (323) 801-7939 Email: jolee@lafla.org

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