In California, a domestic violence restraining order can be obtained to provide protection for individuals who have experienced domestic violence. Here is an overview of the process:
1. Eligibility: To be eligible for a domestic violence restraining order in California, you must have a close relationship with the abuser, such as being married, divorced, separated, dating, living together, or having a child together, your parent, child, sibling, or grandparent (includes in-laws and step relationships), someone you live with or used to live with (more than just roommates). If you are roommates, you cannot file a domestic violence restraining order and can explore filing a civil harassment restraining order. You must also have been a victim of domestic violence, which includes physical abuse, emotional abuse, financial abuse, coercive control, threats, harassment, stalking, and other forms of abuse as defined in the California Domestic Violence Prevention Act.
2. Filing and Serving the Request: To obtain a domestic violence restraining order, you need to complete the necessary forms and file them in Court. You must arrange to serve the restraining order on the other party by a law enforcement officer or a professional process server. The court will not proceed with the final hearing unless the papers are served on the restrained party unless you make a motion to request alternative methods of service.
3. Temporary Restraining Order (TRO): In cases of immediate danger, you can request a temporary restraining order (TRO) at the courthouse. If the judicial officer finds abuse and grants a TRO, it provides immediate protection until the court hearing.
4. Court Hearing: Attend the scheduled court hearing. Be prepared to present evidence, such as documentary evidence and witnesses, that support your case. The judge will consider the evidence including testimony of all witnesses and decide whether to grant a permanent restraining order.
5. Permanent Restraining Order: If the judge determines that a permanent restraining order is necessary, it will be issued for a specified period of time, usually up to five years. The order may include provisions to protect you and your children, such as prohibiting contact, requiring the abuser to stay away from your home or workplace, the children’s school and their daycare and granting custody or visitation rights.
6. Enforcement and Renewal: If the restrained party violates the restraining order, report it to law enforcement immediately. The order can be enforced, and the restrained party may face legal consequences. 90 days before the permanent restraining order expires, you can file for renewal of the restraining order.
7. Child Custody or Visitation Issues: If there are concerns about the safety and well-being of children involved, gather any evidence related to the abuser’s behavior or actions that may be detrimental to the children’s best interests.
In California, domestic violence restraining orders and child custody are closely related. When it comes to child custody cases involving domestic violence, the court’s primary concern is the safety and well-being of the child.
Here are some key points to understand about the relationship between domestic violence restraining orders and child custody in California:
Impact on Child Custody: When determining child custody orders in cases involving domestic violence, the court considers the best interests of the child. The court aims to protect the child from any potential harm or danger. If there is evidence of domestic violence, it can significantly impact the court’s decision regarding custody and visitation.
Supervised Visitation: In cases where there has been domestic violence, the court may order supervised visitation to ensure the safety of the child. This means that the non-custodial parent can only have contact with the child under the supervision of a designated third-party nonprofessional monitor or with a professional monitor.
Presumption Against Perpetrators: California family law has a “rebuttable presumption” against granting joint legal and joint physical custody to a parent who has engaged in domestic violence within the last five years. This means that if there is a history of domestic violence, the court will presume that it is not in the best interest of the child to be placed in the custody of the perpetrator.
Attorneys specializing in domestic violence cases have in-depth knowledge of the relevant laws and regulations which are constantly evolving. They understand the complexities of child custody proceedings and the specific considerations involved in cases involving domestic violence. Remember to consult with a domestic violence lawyer or seek guidance from a local domestic violence resource center for specific advice on what evidence is most relevant and how to present it effectively during your court hearing. They can provide further guidance and support tailored to your situation.
If you are facing a child custody case involving domestic violence, it is crucial to consult with a knowledgeable domestic violence lawyer who can guide you through the legal process and help you present the strongest case possible.
Contact us today to schedule a consultation.
