Restraining Orders (Page 2 of 4)

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)]

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

Co-parent: 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 a 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)]

****My experience in DV cases with children involved is that the court generally order no contact with your children until the next hearing which is about 20 days thereafter. Other reasons for delays may result in a longer no visitation period as well for other legal reasons. Further, the courts generally are likely to respond and be over protective in these areas for children. Therefore, do not wait until it is too late seek legal assistance ASAP.

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)]