San Diego Domestic Violence Lawyer
Domestic violence is the perpetration of emotional, physical or verbal abuse by one person against another where the parties have a close, familial or dating relationship. Domestic violence actions are commonly filed but carry great significance in a person’s life if granted, both for the protected party and for the restrained party.
We cannot stress enough the importance of having excellent legal representation in San Diego domestic violence cases. Why? The downstream effects of the San Diego Family Court granting a permanent domestic violence restraining order can have significant unknown or unintended consequences, such as:
- If a court of competent jurisdiction finds, after a hearing, that a parent of a child committed an act of domestic violence there is a legal presumption that the perpetrating parent should not have any legal or physical custody of their child (see Family Code 3044);
- When a person commits DV their information is input into the California statewide CLETS systems, which is a law enforcement informational system that provides information to police and sheriffs about domestic violence parties;
- When a permanent restraining order is entered, it restricts the liberties and freedoms of the restrained party. The restrictions can be significant.
If you are considering filing a restraining order or you are defending a restraining order, or if you believe that a restraining order hearing may be more difficult than you initially anticipated (whether you are the petitioner or respondent), call our office today for a free consultation. Our San Diego domestic violence attorneys can walk you through the process and let you know specifically what you should expect in your case. We have provided you with a basic set of procedural likelihoods for your domestic violence restraining order case on this page.
What to expect when a domestic violence restraining order is filed in San Diego Family Court.
Domestic violence (DV) restraining order (RO) cases follow the same basic track to conclusion; however, depending on whether the parties are represented, the issues involved (such as custody and visitation or support), the amount of evidence involved, and other factors, the case may conclude very quickly or take considerable time. In all cases, the following procedures will apply:
- A DV case is started when a person needing protection files a temporary restraining order (TRO) with the family court. The case is filed in the courthouse location applicable based on the requesting party’s or restrained party’s address, whichever the filing party prefers. A DV TRO filing includes a request for an RO, a statement of facts (called an affidavit) describing all the abuse that occurred, and other necessary paperwork.
- The TRO is filed by the protected party and a judge will usually approve the request without a hearing. If there are no grounds for even a TRO, the judge will deny the request. This is rare.
- The TRO is then served by the sheriff on the restrained party. The requesting party can request a “move out order” when they file the TRO if the party’s still live together.
- The requesting party may also file a request for child custody and visitation orders, child and spousal support, attorney fees, a request that the perpetrator participate in a 52 week batterer’s intervention course, or other relief.
- When the TRO is filed, the court clerk will provide a hearing date on the paperwork. The hearing will occur within approximately 21 days.
- The restrained party has the opportunity to file an answer to the RO request.
- At the first hearing, the court will proceed unless there is a request for a continuance. If the respondent requests a continuance, he or she has a right to a continuance as a matter of right. If the petitioner requests a continuance and the respondent objects to the request, the court is not supposed to allow the continuance.
- When the hearing occurs, it may be an extremely quick hearing (like when either party doesn’t show up for the hearing) or extremely long and drawn out. Cases may take a long time because there may be a lot of evidence that one or both parties want to present, or a lot of witnesses that a party wishes to obtain testimony from.
- The case will conclude when the family law judge or commissioner in San Diego either grants or denies the request for a permanent restraining order.
Child custody orders within a Domestic Violence case
The court is permitted to make child custody and visitation orders within a domestic violence case. Importantly, even if the court denies the underlying restraining order request, the court may still order effective custody orders.
Can family pets be listed on Domestic Violence restraining orders?
Yes. Recently, the California legislature included allowing pets as protected parties under a DV restraining order filing.
What type of behaviors will constitute domestic violence?
California Family Code 6320 describes the behaviors that can be restrained under a domestic violence TRO, which can then be incorporated into a permanent restraining order:
- Sexually assaulting
- Credibly impersonating
- Falsely impersonating
- Telephoning, including, but not limited to, making annoying telephone calls
- Destroying personal property
- Contacting, either directly or indirectly, by mail or otherwise; or
- Coming within a specified distance of, or disturbing the peace of the other party
Can family members or household members be included in a Domestic Violence Restraining Order?
Yes. At the discretion of the court, on a showing of good cause, other named family or household members may be included in the temporary or permanent restraining order. Normally, family members and household members would not be included unless there is a legitimate reason. For example, a roommate generally would not have to be named specifically on a TRO or permanent restraining order because the restraining order itself will required the restrained party to stay at least 100 yards away from the protected party’s residence at all times, even if they are not there.