Domestic Violence FAQ’s
What is the difference between a Temporary Restraining Order (TRO) and Permanent Restraining Order?
A temporary restraining order, or TRO, lasts only until the hearing the court sets to decide whether a permanent restraining order should be issued. Even though a TRO, or emergency protective order, is only “temporary,” it is still a valid, binding and enforceable court order. A temporary restraining order may be granted even though the respondent is not present in court and has not even provided notice of the hearing. The burden of proof for the petitioner who seeks the restraining order is therefore low. A permanent restraining order lasts longer than several weeks, and may last up to five years. A permanent restraining order, or RO, may only be ordered by the court after notice of the hearing and an opportunity to be heard is provided to the respondent.
Where do I file a Temporary Restraining Order?
A domestic violence restraining order is filed with the appropriate family court. Depending on whether the parties are involved in an underlying divorce, paternity or guardianship action, the parties may file a domestic violence restraining order under the existing case, or a person may file a new action. Domestic violence TROs may be filed in the family court proper to file the action in the petitioner or respondent’s zip code. There are family courts in South Bay in Chula Vista, downtown San Diego at the Madge Bradley Building and at the main Family Law Building, in East County in El Cajon, and in North County in Vista.
What do I need to prove to the court to obtain a TRO?
The standard of proof to obtain a temporary restraining order, move out orders, and child custody and visitation orders without notice to the other party is generally quite low. Most often, courts err on the side of caution and grant most requests for temporary restraining orders since the civil liberties of the respondent are affected for only a short time.
Does it matter that the police did not arrest the other party after the alleged DV incident?
Probably not. The family courts do not require the respondent to be arrested or found guilty of a crime to issue a TRO or permanent restraining order. However, a police report or police officer’s testimony relating to the alleged DV incident might be important evidence in the pursuit or defense of a family law restraining order. Certainly, a domestic violence criminal conviction is enough by itself to obtain a family law restraining order in perpetuity.
What happens once the court grants the Temporary Restraining Order?
Once the family court enters an order granting a TRO, a hearing for a permanent restraining order will be set by the court clerk. The hearing will be set within approximately 20 days. The court clerk will also provide the filing party with a copy of the temporary order for his or her records, and an extra copy for service upon the respondent. The temporary restraining order and notice of hearing for the permanent restraining order must then be personally served on the respondent.
Can the sheriff serve my restraining order on the perpetrator of domestic violence?
Yes. The sheriff is obligated to serve family law restraining orders on the responding party free of charge. You will need to visit your local sheriff’s office (often their offices are located at the courthouse) and provide them with the documents to serve on the other party.
What happens during the hearing for a permanent restraining order?
Due to recent changes in the law, including the Elkins case and cases that followed that case, the family court is required to permit the presentation of oral testimony and cross examination in domestic violence matters. That means that witnesses will testify. Generally, the court weighs the written declarations submitted by the parties, third party declarations submitted by those persons with knowledge of the alleged DV incident, oral testimony and the cross-examination of witnesses, and arguments by parties or their attorneys.
Domestic violence hearings may take five minutes or they may take many days, depending on the facts, number of witnesses, evidence to be submitted, and so forth. Try and provide your judge with a realistic estimate of time that your case will take to litigate.
Can the court make child custody or visitation orders in a DV case?
Yes. The court has jurisdiction to enter child custody and visitation orders, including orders for supervised visitation and abduction prevention, so long as a valid temporary or permanent DV restraining order remains in effect. If there is an underlying divorce action or paternity case, child custody and visitation orders may be entered under those particular cases. If a divorce or paternity case has not been filed by either party, and they have a child together, the court does not have jurisdiction to make custody orders if the request for a permanent restraining order is denied.
Does a Restraining Order Change the Way the Court Orders Child Support?
Most likely, yes. After a hearing where the other side was provided with notice of the hearing and an opportunity to participate in the case, and if the court grants the “permanent” restraining order, the law provides a presumption that the perpetrator of the DV is not entitled to legal or physical custody of their child.
Family Code 3044 states that there is a “rebuttable presumption” that the perpetrator of domestic abuse is not allowed to have custody of a child, and the presumption can be “overcome” by evidence. The evidence required usually involves the abuser participating in parenting classes, attending anger management, going to counseling, and so forth.
This law is an important consideration for any party seeking or defending a restraining order.
Can the court make child support or spousal support orders in a DV case?
Yes. The court does have the jurisdiction to order child support or alimony, as well as orders for payment of certain debt and attorney fees in a DV action. In order for the court to grant a request for child support in a domestic abuse case, the party requesting support needs to provide an Income & Expense Declaration, also called an IED. The Income and Expense Declaration is a four page document signed under penalty of perjury that discloses a family court participant’s income, expenses, and also briefly outlines the parties’ assets.
TIP: Often the court will gloss over the issue of child support, even if you have requested child support in your documents that you filed seeking the restraining order. It is important to file your Income & Expense Declaration and then make sure to affirmatively request the court make a child support order at the hearing.
Can the court order the other party out of our family residence?
Yes. The court has the jurisdiction to order the perpetrator of domestic violence removed from the family residence. The court may order this at the time the initial temporary RO is ordered, or following the hearing on the request for a permanent DV prevention order.
Will I be allowed to record phone calls from the perpetrator of violence?
So long as the orders that resulted from a TRO or permanent RO hearing indicates that communications, including telephone and cell phone calls, may be recorded it is acceptable. The Family Code permits the court to allow victims of domestic violence to record the respondent’s communication. Without such an order, it is illegal to record the communications of another person without their knowledge and consent.
I’m scared because the aggressor owns a gun – what do I do?
Once a temporary and/or permanent restraining order is granted and served, the respondent must surrender all of his or her weapons to law enforcement.
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