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#560 Court order prohibiting domestic violence

mp3 #560 Court Order Prohibiting Domestic Violence (mp3 file)


Family Law matters are very complex and even more so when domestic violence is involved. Hiring a family law attorney with experience in domestic violence cases will ensure someone will fight for your rights and provide resources that will help you get through this traumatic experience. Continue here to be referred to an experienced and insured Family Law attorney:


Under the Domestic Violence Prevention Act, California courts may issue orders to protect you from physical violence by family members or close friends. If someone you live with, or with whom you have recently lived or had a personal relationship, has been physically violent to you or someone else in your house, you may obtain these special court orders. They are called Orders Prohibiting Domestic Violence, and are enforced by your local police or sheriff. This message tells you what order you can get, and how you can get them.

The person who asks for the order is called the petitioner, or "the person to be protected". The person who must obey the order is called the respondent, or "the person to be restrained". If you, as a petitioner, want to get these orders, two things must be true about you and the respondent. The first requirement is that you and the respondent must have some kind of relationship. You may be related by blood, marriage, adoption of a close relative, or be currently married or previously married to each other. Or if you are not related in any of these ways, you and the respondent must regularly reside in the same household, or have regularly resided in the same household, or have been dating or engaged, or have had a child together. You may obtain a court order even if you have had to move out of the house to escape being abused by the respondent. If you are married to the respondent, you do not have to file for a separation or divorce in order to obtain an order prohibiting domestic violence.

The second requirement is that the respondent must have attempted or succeeded, either deliberately or recklessly, in physically injuring you or another household member, or the respondent must have made threats of serious violence, so that you reasonably feared immediate serious bodily injury to yourself, or to the household member who was threatened. The two things, then, that must be true about you and the respondent are:

1. You are related in one of the ways that has been described or regularly reside in the same household, or had a dating relationship, engaged or had a child together.

2. The respondent has done or attempted or threatened serious violence, to you or to another household member.

If all of these things are true, you can ask the court for an Order Prohibiting Domestic Violence.

There are several kinds of court orders available to help you. The first order, called a "TRO" or Temporary Restraining Order, is one which you can get before the court hearing. It tells the respondent not to "contact, molest, attack, strike, threaten, sexually assault, batter, telephone, contact repeatedly by mail with intent to harass, or disturb" you or other family or household members. In other words, this order forbids the respondent from bothering you in any way, and it takes effect immediately. The court can also order the respondent to move out of the house, and can forbid the respondent from returning to the home, whether or not you are married to the respondent, pending a hearing on the matter.

Another type of order will direct the respondent to stay away from you and places or people outside the home, such as your place of work, or schools attended by members of the family or household. Other court orders are for child custody and visitation, the temporary possession and use of certain property, payment of debts, and payment for damages. You can ask for orders that fit your personal situation and will help protect you from violence.

To obtain an order as described previously, a set of forms must be filled out. The forms are not very simple. You should try to go to a courthouse that has a domestic violence project with volunteer attorneys that can assist you. The Los Angeles County Bar Association (LACBA) has two domestic violence projects in both the downtown Los Angeles and Pasadena Superior Courts. Call (213) 624-3665 for further information regarding this free project.

What if the courts are closed, such as at night, or on weekends or holidays, and you need a temporary restraining order immediately, to protect yourself or another household member from an immediate and present danger of domestic violence?

California law authorizes an Emergency Protective Order. California Family Code section 6241 requires that each county must have a judge, commissioner, or referee available by telephone at all hours when the courts are closed. When the police determine that a recent incident of abuse or threat of abuse, by a family member or household member, requires an emergency telephonic Temporary Restraining Order, the police will call the judge, the judge will authorize the restraining order, and the police will put the order in writing and give you a copy. Then if there is any further abuse or threat of abuse, the police can arrest the person who violates the court's order.

The Emergency Protective Order is easy to obtain. All you have to do is contact the police and tell them what is happening to you. The police will contact the judge for you.

The Emergency Protective Order expires at the earlier of the following times:

1) The close of judicial business on the fifth court day following the day of issuance; or

2) The seventh calendar day following the day of its issuance.

So, you have to apply at court before it expires for a more permanent restraining order. But this emergency procedure gives you some protection when the courts are closed.

To get the longer-lasting court orders you must do certain things. First, you must obtain and fill out domestic violence forms, which are available at the county clerk's office. Second, take the forms back to the county clerk's office. Third, you must secure a judge's signature on the temporary restraining order. The county clerk's office will tell you how to do this. The fourth thing you must do is have the papers personally delivered on the respondent. Because you are not permitted by law to deliver the papers yourself, you may have them delivered by an adult friend or relative who is not a party to the action, or you may pay a fee and have the sheriff deliver them. The fee may be waived if you demonstrate financial need.

To make sure the court orders can be immediately enforced, you must personally deliver copies of the orders to each law enforcement agency where you live, work, or go to school. Keep your own copy with you at all times, along with a copy of the proof of service. You may also want to deliver copies to your place of work or, if children are involved, to their schools or day care centers. The respondent must know about the court orders, by being personally served with copies of the order, before they can be enforced.

The fifth thing you must do to get a longer-lasting court order is to attend the court hearing on the date set by the county clerk and present your evidence. Following the hearing, the judge may sign an Order Prohibiting Domestic Violence. This order will remain in effect to protect you up to three years.

Report any violations of the orders as soon as possible to your local law enforcement agency. Keep a written record of these violations, and get copies of any police reports dealing with the incidents. If you get medical treatment for injuries caused by the respondent, obtain copies of the medical reports.

Violation of a restraining order is a misdemeanor, for which the punishment is up to one year in jail, and a $1,000 fine. The district attorney's office will decide whether to file a criminal complaint when requested to do so by you or the police.

Violation of a restraining order is also punishable by civil contempt of court. If the respondent violates the restraining order, you may file a civil contempt action in the same court that issued the restraining orders. The costs of your attorney can be charged to the respondent if he or she loses.

You need not hire an attorney in these situations. You can do the whole thing by yourself. But an attorney can be of great help to you. There are two situations where it may be especially important for you to have legal advice. If you are married to the respondent, you are eligible to file for divorce, separation, or annulment. The protection you can get from these proceedings can be broader and last longer than the protection provided by the domestic violence orders. For example, when you file a divorce action, the court can also order your spouse not to dispose of money or property without good cause. Court orders issued during a divorce action last for one year.

The other situation in which legal advice is especially important is if you and the respondent have children together, whether you are married or not. In this case, it is best to file a legal proceeding which gives the court power to deal with child support, custody, and visitation problems, over a longer period of time.

If you receive an Order to Show Cause and Application And Declaration For Prohibiting Domestic Violence, then you are the respondent, and you should immediately get legal advice. Whether or not you consult an attorney, you should read carefully the documents you have received. The Order to Show Cause cause tells you when to appear in court, and probably contains a Temporary Restraining Order which forbids you to do certain things, and which may require you to move out of the house. Do not disobey the court's orders, or you could face criminal charges. If you want to oppose the Application, or make your own request for court orders, you should fill out and file the Responsive Declaration to the Order to Show Cause. You may also file statements signed by people who have personal knowledge of the facts. After you file the Responsive Declaration with the county clerk, a copy must be delivered by mail to the petitioner or to the petitioner's attorney.

A booklet is available in the county clerk's office which will give you more detailed and important instructions concerning the steps to take under this law to protect yourself and others in your home from domestic violence.

Whether or not you have obtained a court order against domestic violence, if a certain person engages in such violence upon you, it is a crime in California.

Penal Code Section 273.5 says that it is a felony for anyone to inflict corporal injury resulting in a traumatic condition, on his or her spouse, or on any person with whom he or she is cohabiting, or on any person who is the mother or father of his or her child. Anyone found guilty may be sentenced to up to four years in state prison plus a $6,000 fine. The work "cohabitation" does not require that the couple must be saying that they are married to each other. The words "traumatic condition" means a bodily wound, either external or internal, either minor or serious, which is caused by a physical force.

Another Penal Code Section. 243(e), called the "Dating Bill", defines a similar but different crime, which is a misdemeanor, punishable by up to one year in county jail, and a $2,000 fine. Penal Code Section 243(e) defines the crime of "dating battery". Battery is any willful and unlawful use of force or violence upon another person, and it is a crime in California when battery is committed against a non-cohabiting former spouse, fiancé or former fiancé, or a person with whom the defendant currently has, or has previously had, a dating relationship. Bodily injury is not required for this crime, only the use of force. When the legislature passed this law in 1989, it stated its "condemnation for such crimes of violence upon victims with whom a close relationship has been formed".

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