Being served with a restraining order can be very stressful and frustrating. They are an extremely serious matter and should not be taken lightly. There are several types of restraining orders. There are civil harassment orders, criminal protective orders, and domestic violence restraining orders. This article is meant to provide you with some tips if you’ve been served with a domestic violence restraining order.
BEFORE THE HEARING
- READ THE ORDER CAREFULLY: Legal paperwork can be confusing but be sure that you always read everything very carefully. Pay special attention to the DV-110 form because this is the actual order portion. There are a series of check boxes and pre-printed language on this form. Anything checked or pre-printed is an order. The order is valid and enforceable the moment you are served.
- Do NOT Contact the “Protected Party”: Even if the protected party contacts you, do not respond. Even if the contact was initiated by the protected party or was consensual, this is still a violation of the restraining order. Take great care in avoiding any contact with the protected party. If they are at already at a location, you must not go to that location. If they arrive at your location (for example, the local grocery store), you should leave that location. Your children may also be listed as protected parties. If that is the case, you may be restrained from contact with the children (either partially or totally).
- Do NOT Use Third Parties for Contact: Contacting the protected party using a third party is still considered “contact” and a violation of the order. Thus, using friends or relatives or even children as a messenger is a violation of the order.
- Avoid Indirect Contact: Indirect contact includes social media, both posting on another’s Facebook, Instagram, Snapchat, Twitter, etc., and posting messages to the other person on restrained person’s social media or in a way that essentially guarantees they will see it. Even if they are not directly your friend, if you have mutual friends, be careful not to inadvertently make contact or third-party contact.
- Be Careful About Brief and Peaceful Contact for Child Exchanges: This “exception” to the restraining order is frequently a source for potential for violations. During the exchange themselves, consider having a witness present or asking someone else to conduct the exchange. Also, consider exchanging at a neutral and public location, preferably with surveillance cameras. Consider avoiding exchanges by having them take place at schools. If you must be at the exchange, you could stay in the car and let the children walk to the other parent’s car. If there is a problem during the exchange, you can contact the police to keep the peace. If there must be written contact about exchanges, consider the use of Our Family Wizard or Talking Parents. Better yet, try to work out exchanges through the attorney or a visitation monitor ahead of time to avoid having to contact the protected party.
- Violation of the Order is a Crime: Not only will violation of the temporary order almost guarantee that a permanent restraining order will be granted, violation of the order is also a crime. The temporary restraining order is a CLETS (California Law Enforcement Telecommunication System) order. It is enforceable under the penal code, and a violation is most often charged as a misdemeanor (though some cases are charged as a felony).
- You MUST Turn in Any and All Firearms Right Away: As with a contact violation, this is a crime. However, this violation can be charged as a felony. Be aware that sometimes the Department of Justice does a gun “sweep.” Because this is a CLETS order and guns must be registered, they sometimes contact restrained gun owners to catch them in a violation. There is a form (DV-800) that you must fill out related to firearms. It contains instructions related to appropriate places where you can turn in your firearms while the restraining order is pending. If your job requires that you carry a firearm, you may be granted special consideration. Be sure that your attorney is made aware of this situation right away.
- Build A Good Defense: If there is evidence in your favor, including documents, pictures, or witnesses, be sure to let your attorney know right away. Be sure that your declaration is as accurate as possible (no hyperbole, misstatements, or assumptions/speculation) and includes all information you want the court to know. You do not want to have evidence excluded because the other side was not given “notice” of a claim or the existence of evidence. Begin gathering evidence to show the incident is isolated (if that is true). If the case involves children, begin gathering evidence about your involvement as a parent. You will want to work on overcoming the presumption that you should not be granted custody, as some attorneys use restraining orders tactically to gain an advantage in custody cases. Consider taking a co-parenting (especially a high-conflict centered class) and a parenting-skills class. Also consider individual counseling. Being pro-active about diverting future conflict can show the court that future abuse is unlikely to reoccur. You may also have character witnesses, though limit these to a small number, as witnesses who actually perceived the events in question are more relevant and powerful.
- “Domestic Abuse” Is Not Limited to Physical Violence: While physical violence certainly qualifies as abuse, domestic abuse can also mean harassment, stalking, intimidation, verbal abuse, psychological abuse, emotional abuse, false imprisonment, financial abuse, etc. Withholding keys, a purse/wallet, or a cell phone can be abuse. Committing an act of abuse against a loved one in the other party’s presence can be abuse. Hacking emails and social media accounts can be considered abuse. Online harassment via social media or public embarrassment can be considered abuse. Actions which cause disturbance to another person’s peace of mind can be considered abuse.
- Your Hearing May Not Be Heard Right Away: While domestic violence restraining orders are given “priority” and are set in two-weeks’ time, they may not be heard right away. This can be because a continuance is granted, the court does not have enough time to hear the matter, or the matter is set for an evidentiary hearing (a trial style hearing where witnesses testify, and evidence is formally presented). Due to the serious consequences associated with a restraining order, an attorney defending the matter will want to be well prepared. Adequate preparation, especially for an evidentiary hearing, takes time. Additionally, an evidentiary hearing is a long hearing. Often the court’s calendar is impacted, necessitating a hearing set out several months.
- The Responding Party is Entitled to One Continuance: As a matter of right, the party who is responding can ask for a continuance. This means there is no need to show good cause (though it often exists due to the shortened time for the hearing). The protected party does not have the same right. Either party may be granted a continuance is they are able to show “good cause.” Good cause means that the party requesting the continuance convinces the judge that the proposed continuance is necessary or a good idea.
- Temporary Orders May Be Modified: If your hearing is going to be continued, you may have the opportunity to make a requested amendment to the restraining order. Moreover, sometimes an attorney can negotiate with the protected party and obtain an amendment. This often comes up when the temporary order impacts the restrained party’s ability to attend school or work or exchange the children for visitation.
- Be Aware of the Difference Between a “Temporary” and “Permanent” Restraining Order: A restraining order is temporary if it is issued prior to a hearing. A permanent order is a restraining order issued as a result of a hearing. At the hearing, the court may issue a restraining order for six months, a year, three years, five years, or indefinitely, depending on the circumstances. However, the length of time does not make it a “temporary” order. Rather, it is a permanent restraining order granted for a set period.
- Past Acts of Abuse Are Relevant: Past acts of violence may “form an evidentiary basis” for a permanent order. The court may consider “reasonable proof” of past abuse as part of its decision about whether to grant a restraining order.
- The Burden of Proof is on the Protected Party, But It’s a Low Burden: By a preponderance of the evidence (meaning it is more likely than not), the protected party bears the burden to prove that the restraining order is needed to 1) the prevention of future acts of domestic violence and 2) provide the parties with a cooling off period. The preponderance standard is the lowest burden of proof standard that the court uses.
AFTER THE HEARING
- The Prevailing Party Can Request Attorney’s Fees: The family code related to domestic violence restraining orders allows the party who prevails to request attorney’s fees. The fees are not mandatory. The court has discretion whether to make an award and how much. If you request fees, you will have to provide the court with an Income and Expense Declaration form. The court may consider the defense that an award would cause the other party an undue financial hardship.
- A Restraining Order Can Have Detrimental Impact on Child Custody, Spousal Support, And Background Checks/Security Clearances: A documented history of domestic violence is one of the factors the court must consider in setting spousal support or also known as alimony. In addition, a criminal conviction of domestic violence creates a rebuttable presumption that the abused party should not have to pay spousal support (if within five years of filing divorce). There are even more severe consequences for a spouse criminally convicted of a sexually violent felony against a former spouse which is beyond the scope of this article. A finding of domestic violence (in the past five years) also creates a rebuttable presumption that the restrained party should not have joint or sole custody (physical and legal) of minor children. The court must consider domestic violence when making findings regarding the children’s best interests. Finally, a restraining order will show up on background checks (especially government checks) and can negatively affect security clearances. This may hinder your current or future employment options.
- A Restraining Order May Be Renewed: Even if no other acts of abuse or violations of the order have taken place since the order was made permanent, the protected party may petition the court to renew the order. The protected party must show by a preponderance of the evidence that the protected party still has a “reasonable apprehension” of future abuse.
- Stay Off Social Media: Anything you post on social media may find its way into court and in front of the judge. It’s advisable to avoid any discussions of court hearings on social media and avoid posting anything that could harm your case- even if you are not “friends” or otherwise directly connected. Mutual friends and acquaintances may forward your posts.
- Try to Avoid Conflicts and High Conflict Persons: It sounds obvious, but this is important. If you are involved with a high conflict person, seek out help and resources. There are programs specifically designed to improve your skills in diverting conflict. Confronting a high conflict person in your life may cause you to be on the defending end of a restraining order. Consider your options carefully, such as bringing a witness if you have concerns about false allegations and ask your attorney what other avenues are available for dealing with high conflict persons.
- If You Have Questions, Ask: As with any complex legal issues, if you have questions, ask your attorney. Do not assume anything.
At Law & Mediation Firm of Klueck & Hoppes, APC, we are here to help you understand any restraining orders that may be involved with your family law case. Call (619) 577-4900 to schedule your consultation with one of our family law attorneys.