Eugene E. Kinsey, Attorney at Law

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Available Orders In Domestic Violence Cases

Whether actual or threatened acts of domestic abuse occur within or without a marital relationship, "protective orders" identical to those available in a marital proceeding may issue ex parte and/or on noticed motion in an independent action commenced under the Domestic Violence Prevention Act (DVPA, Ca Fam § 6200 et seq.).

The DVPA is intended to prevent the recurrence of acts of domestic violence and to provide for a separation between the parties involved for a period of time sufficient to enable them to seek a resolution of the causes of the violence. [Ca Fam § 6220]

An alleged domestic violence victim is a "protected person" under the DVPA and thus entitled to the benefit of a DVPA order only if he or she fits one of the descriptions contained in Ca Fam § 6211 (providing that domestic violence is "abuse" perpetrated against specified classifications of persons).

Categories Of Protected Persons

The person seeking a DVPA remedy as a "protected person" must fall into one of the categories described in Ca Fam § 6211:

Spouse: A spouse or former spouse. [Ca Fam § 6211(a)]

Cohabatant: A "cohabitant" or former cohabitant--meaning a person who regularly resides (or formerly regularly resided) in the household. [Ca Fam § 6211(b);Ca Fam § 6209 (defining "cohabitant" under DVPA)]

Dating Or Engagement Relationship: A person with whom the respondent (alleged perpetrator) is having or had a "dating or engagement relationship." [Ca Fam § 6211(c)] As defined by the DVPA, a "dating relationship" means "frequent, intimate associations primarily characterized by the expectation of affection or sexual involvement independent of financial considerations." [Ca Fam § 6210]

Coparent: A person with whom the respondent (alleged perpetrator) has had a child . . . where, pursuant to the Uniform Parentage Act, the male parent is the presumptive father of the child of the female parent. [Ca Fam § 6211(d)]

Child: A child of a party or a child who is the subject of a Uniform Parentage Act action, where the presumption applies that the male parent is the father of the child to be protected. [Ca Fam § 6211(e)]

Blood Relatives: Any other person related by consanguinity or affinity within the second degree. [Ca Fam § 6211(f)]

Showing Of Abuse Required

Protective and other "domestic violence prevention" orders (Ca Fam§ 6300 et seq.) may issue, with or without notice, to prevent a recurrence of domestic violence pursuant to affidavit demonstrating, to the court's satisfaction, "reasonable proof of a past act or acts of abuse." [Ca Fam § 6300]

"Abuse" within the meaning of the DVPA means either:

    • intentionally or recklessly causing or attempting to cause bodily injury (Ca Fam § 6203(a)); or

    • sexual assault (Ca Fam § 6203(b)); or

    • placing a person in "reasonable apprehension" of imminent serious bodily injury to that person or another (Ca Fam § 6203(c)); or

    • engaging in any behavior that has been or could be enjoined pursuant to Ca Fam § 6320; (Ca Fam § 6203(d)).

Thus, the requisite "abuse" need not be actual infliction of physical injury or assault.

Orders Available

The Ca Fam § 6218 protective orders may include any or all of the following (Ca Fam § 6218):

Temporary Custody: During the pendency of a proceeding where the custody of a minor child is in issue (including domestic relations status actions, Ca Fam § 3120 actions for exclusive custody, DVPA actions provided a parent-child relationship has been established, UPA actions and Ca Fam § 17404 county agency support enforcement actions), the court may make whatever temporary custody order "seems necessary or proper." [Ca Fam §§ 2045(b), 2047, 3021, 3022, 3060 et seq., 6323(a)]

Temporary Child Visitation: The court may also issue a temporary order determining the right of a party to visit a minor child "on the conditions the court determines." [Ca Fam §§ 2045(b), 2047, 6323(a)(1)]

Child Abduction Prevention Orders: The Family Code identifies several factors that may signal a risk one parent might "abduct" the minor children to another county, state or country. If it becomes aware of facts indicating such a risk, the court has a duty to determine whether orders should be entered to prevent the threatened abduction (move-away or travel restrictions, posting a bond, even turning in passports, etc.). [See Ca Fam § 3048(b)]

Protective Orders Where Child Sexual Abuse Is Alleged: If child sexual abuse is alleged during a custody proceeding and the court is concerned about the child's safety, the court has discretion to take "any reasonable temporary steps" deemed appropriate under the circumstances to protect the child's safety until an investigation can be completed. [Ca Fam § 3027(a)] In such cases, the court may request an investigation by the local child welfare services agency pursuant to Ca Wel & Inst § 328; and may be required to order a custody evaluation pursuant to Ca Fam § 3118. See Ca Fam §§ 3027(b), 3118)

Assaultive Conduct & Property Destruction: An order enjoining a party from "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." [Ca Fam §§ 6218(a), 6320, 6340(a)]

Dwelling Exclusion: An order excluding a party from "the family dwelling, the dwelling of the other party, the common dwelling of both parties, or the dwelling of the person who has care, custody, and control of a child to be protected from domestic violence" for whatever period and on whatever conditions the court determines, "regardless of which party holds legal or equitable title or is the lessee of the dwelling." [Ca Fam §§ 6218(b), 6321(a), 6340(a)]

"Effectuating" Order: An order enjoining a party from any other specified behavior that the court deems necessary "to effectuate" § 6320 (assaultive conduct/harassment) or § 6321 (dwelling exclusion) orders. [Ca Fam §§ 6218(c), 6322, 6340(a)]

Firearms Restraining Order: A broad restraining order concerning the possession and acquisition of firearms automatically takes effect by operation of law when the court issues a Ca Fam § 6218 domestic violence protective order: A person subject to a Ca Fam § 6218 protective order is prohibited from owning, possessing, purchasing, receiving, or attempting to own, possess, purchase or receive, any firearms for so long as the protective order remains in effect.

Wiretap Order: A judge issuing a domestic violence restraining order may, upon the victim's request, also include a provision permitting the victim to record any prohibited communication made to him or her by the perpetrator. Absent such an order, the surreptitious recording, although made to document evidence of a crime, could run afoul of state and federal wiretap and invasion of privacy laws. [Ca Penal § 633.6(a)]

Restitution Orders: In domestic violence situations, after notice and hearing, the court may issue the following compensatory monetary orders--but not including "damages for pain and suffering" (Ca Fam § 6342(a),(b)):

Payment Of Victim's Damages: The Court may make an order requiring the respondent perpetrator to pay restitution to the applicant party for loss of earnings and out-of-pocket expenses--including, but not limited to, medical care and temporary housing expenses--incurred as a direct result of the abuse inflicted by the respondent or any actual physical injuries sustained from the abuse. [Ca Fam § 6342(a)(1)]

Damages To The State: The Court may make an order requiring the respondent perpetrator to pay restitution to any public or private agency for its reasonable cost of providing protective services to the other party as a direct result of the abuse inflicted by the respondent or any actual injuries sustained therefrom. [Ca Fam § 6342(a)(3)]

Payment Of Damages Caused By Unwarranged Application: If the court finds at a noticed hearing that the ex parte protective or domestic violence prevention order issued on "insufficient" supporting facts, an order requiring the party who obtained the order to pay restitution for out-of-pocket expenses incurred by the other party (respondent) as a result thereof. [Ca Fam § 6342(a)(2)]

Batterer's Program: Also, in domestic violence situations, and after a noticed hearing, the court may order the restrained person to participate in a batterer's program approved by the probation department, which may include lectures, classes, group discussions and counseling directed at stopping domestic violence (see Ca Penal § 1203.097(c)--batterer's program standards). [Ca Fam § 6343(a)]

Additional Emergency Protective Orders: Protective orders may be obtained ex parte on an emergency basis (so-called "emergency protective orders") in cases of imminently threatened domestic violence, child abuse and/or child abduction, stalking, or elder or dependent adult abuse. [Ca Fam § 6240 et seq.; Ca Penal § 646.91; see Ca Fam § 6241. These include

Harassmant/Stalking Orders: The Court may issue a harassment protective order (as described in Ca Civ Pro § 527.6) or a workplace violence protective order (as described in Ca Civ Pro § 527.8) as necessary to prevent the occurrence or reoccurrence of "stalking" (defined to mean willfully, maliciously and repeatedly following or harassing another and making a "credible threat" with intent to place that person in reasonable fear for his or her safety or the safety of his or her immediate family; see Ca Penal § 646.9) (Ca Fam § 6274; Ca Penal § 646.91)

Temporary Care Of Children: An order determining the temporary care and control of any minor child of the endangered person and the person against whom the order is sought (Ca Fam § 6252(b))


Ex Parte Orders

The procedure to obtain domestic violence restraining orders involves at least 2 steps. First "ex parte" orders are obtained on very short notice. At the "ex parte" hearing temporary orders may be issued by the Court which last until the next "Order To Show Cause" hearing which must be held no more than 21 days from the issuance of the first order.

"Ex parte" orders are granted on one party's application and without "formal" notice to the other party or opportunity to be heard in opposition. For that reason, the class of orders obtainable ex parte is narrowly circumscribed (primarily limited to "protective orders" and "domestic violence prevention orders," and, necessarily, such orders are of very limited duration.

Since due process requires reasonable notice and an opportunity to be heard, ex parte orders are issued with caution and only under extraordinary circumstances. Specifically, no order governed by Ca Fam § 240 et seq. may be granted on an ex parte basis unless it appears from facts shown in the application for the order (or by attached affidavit) that "great or irreparable injury would result to the applicant before the matter can be heard on notice." [Ca Fam § 241 (emphasis added); see also Ca Rules of Court Rule 379(g) (requiring "affirmative factual showing" of "irreparable harm, immediate danger, or any other statutory basis for granting ex parte relief")]

Ex Parte Hearing Notice Requirements: Although ex parte orders issue without a hearing on formal noticed motion, the California Rules of Court (and all local court rules or policies) require some form of advance notice of the intent to present an ex parte application (Ca Rules of Court Rule 379(a),(b),(e)).

Under Rule 379, absent a showing of exceptional circumstances, the applicant must notify all parties no later than 10:00 a.m. the court day before the ex parte appearance. [Ca Rules of Court Rule 379(b)] However, not all family courts follow Ca Rules of Court Rule 379 and, in those courts, the minimum notice period may be different.

Issuance By The Court

The application, TRO (or Temporary Orders) and notice of hearing/OSC forms (along with the applicable filing fee) must be presented to the court where the underlying action is pending (or, if no pending proceeding, to the superior court of the county of proper venue per Ca Civ Pro § 395(a)).

The court must act on the ex parte application--either issuing or denying the requested order--on the same day the application is submitted. [Ca Fam §§ 246, 6326]

Service Of The Order

The ex parte order takes effect only upon proper service on the party to whom the order is directed.

The time-frame for service depends on whether the temporary restraining order(s) issued with or without notice:

• If the order(s) issued without notice pending the hearing, the above documents must be served on the respondent at least five days before the hearing. [Ca Fam § 243(b)]

• If the order(s) issued with notice pending the hearing, the above documents must be served on the respondent "at least 15 days before the hearing." [Ca Fam § 243(c) (emphasis added)]

Proof of service in accordance with § 243 (above) must be made to the court's satisfaction before the hearing may proceed. If service has not properly been effected and the applicant is not ready to proceed on the hearing date, the court "shall dissolve" the orders. [Ca Fam § 243(d)]

When the ex parte papers are the first papers served on respondent in the action, service must be effected in a manner authorized for initial service of process. In any event, temporary restraining orders must be served by personal service.

A neutral process server or law enforcement officer (below) should be used. Per Ca Civ Pro § 414.10, the papers cannot validly be served by a "party" to the action; and for purposes of domestic violence TROs, "party" includes any nonparty named as a protected person in the order.

Responsive Declaration

The restrained party's responsive declaration must be served on the applicant party at least two days before the hearing (otherwise, the applicant may be entitled to a continuance to prepare to meet the responsive allegations). [Ca Fam § 243(g)]

The Order To Show Cause Hearing

Nothing in the Code requires an appearance by the responding party as a prerequisite to granting the requested orders (i.e., making the ex parte orders "permanent"). If the responding party (personally or through counsel) fails to appear at the hearing (or to file an answer/responsive declaration), the requested relief may be entered by default.

On the other hand, the Code expressly states that "when the matter first comes up for hearing, the applicant must be ready to proceed." [Ca Fam § 243(a)]

The court may take testimony of the parties or make its decision solely on the basis of the papers filed by the parties.

Findings And Order Of The Court

The Court may issue an order only if the judicial officer finds that:

• Reasonable grounds have been asserted to believe there is an immediate and present danger of domestic violence, child abuse, child abduction, stalking (as defined in Ca Penal § 646.9), or elder or dependent adult abuse (as defined in Ca Wel & Inst § 15610.07); and

• An emergency protective order is necessary to prevent the occurrence or reoccurrence of domestic violence, child abuse, child abduction, stalking, or elder or dependent adult abuse. [Ca Fam § 6251(a) & (b); Ca Penal § 646.91(d)]

Service And Filing Of The Order

The orders must be personally served to be effective.

To ensure effective statewide enforcement, domestic violence protective orders (including modifications, extensions and terminations thereof) must be registered with the State Department of Justice (DOJ) through the California Law Enforcement Telecommunications System (CLETS). The DOJ is required to maintain a "Domestic Violence Restraining Order System" and to make all information concerning such restraining orders (whether or not served upon the respondent) available to court clerks and law enforcement personnel through computer access. Electronic transmission of the pertinent information is the county's responsibility. [See Ca Fam §§ 6380(a),(e) & (f), 6382]

Duration Of Orders

Domestic violence restraining orders are deemed to be of three years' duration if the expiration date is not stated on the face of the order form. [Ca Fam § 6345(c)]


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