Domestic Violence Restraining Orders and Their Use in Court
A Domestic Violence Restraining Order (DVRO) is issued first on a temporary basis and then, if findings made are consistent with the issuance of a DVRO, on a more permanent basis.
Temporary Restraining Order
When a Temporary Restraining Order (TRO) is issued, it is done without notice to the party against whom the restraining order is being issued. Essentially, it is a one sided process, with the court taking what the requesting party is stating in their contentions and facts as the truth and without the other party (the restrained party) being able to mount any kind of defense. Because of this, a TRO is almost always granted. In the 11 years I have been doing family law, I have seen only a handful of TRO’s be denied, and it only happened when the Petitioner utterly failed to state any basis for a request. Having handled well over 200 DVRO trials, I can tell the you that the issuance of a temporary restraining order has a very low bar.
Once a temporary restraining order is granted, the court has an obligation to set the TRO for a full hearing and for the restrained party to be served so that they can be on notice of the hearing, and appear and respond to the allegations made against them. If the court finds that there is no domestic violence (DV), then the request is dismissed.
Domestic Violence Restraining Order
If the court finds that there is a basis for issuing a restraining order, then the court decides how long to issue the order for. A DVRO is very typically issued for 1 year, 2 years, 3 years, 5 years or for the life of the party. It is rare to have a DVRO be issued with no expiration, most DVROs are issued for between 1-3 years.
A Domestic Violence Restraining Order is governed by Family Code Section 6203 in conjunction with Family Code 6320. Section 6203 defines abuse as: “To intentionally or recklessly cause or attempt to cause bodily injury, sexual assault, to place a person in reasonable apprehension of imminent serious bodily injury to that person or to another, top engage in any behavior that has been or could be enjoined pursuant to Family Code section 6320”.
Meanwhile, Family Code section 6320 allows the court to issue an ex parte order enjoining a party from” “molesting, striking, stalking threatening, sexual assault, battering, credibly impersonating, harassing, telephoning, destroying property, contacting, either directly or indirectly, by mail, or otherwise and disturbing the peace of the other”.
Looking at these two sections, it is clear that 6320 is meant to function as a laundry list of behavior that falls under the general definition of abuse, that could result in a restraining order being issued. It is also important to note the last specific action that is considered to fall under 6320, “disturbing the peace of the other”.
“Disturbing The Peace of the Other”
“Disturbing the peace of the other” is a catch all. Essentially any behavior that might objectively be seen as disturbing someone’s peace can credibly fall under this catch all provision. Yelling at your spouse? Yes. That can qualify. Punching a wall? Yes, that will qualify. Threatening to file a legal case against the other spouse? Yes, that can qualify. Cursing at the other spouse during an argument? Yes, that can qualify. There is a lot to be said about the catch all provision.
While the court (Judge) is expected to look at the behavior objectively, it is still a judgment call for one person (the Judge) to make, and people can and do disagree. Therefore where one judge might deny a request another might grant it based on the same facts and evidence. Take one example: husband, afraid that the wife might make false accusations of domestic violence against him, sets up a camera in the family home to have video evidence that nothing occurred if something were to be alleged later. The wife can present the presence of cameras to the court to argue that the husband “stalked” her with the video cameras and invaded her privacy, indeed that the camera’s were a form of control over her. Thus, what the husband believed to be a defense against a false accusation can be easily turned into an argument for the issuance of a restraining order. The difference is only one of perspective and intent.
Sometimes the difference in outcome of a domestic violence trial can boil down to things that one does not really think that much about, such as how the purported abuser acts or dresses in court. Is he or she” meek”, does he/she interrupt the judge and the other party to get their point across? How is he/she dressed? Are there tattoos? What does the body language indicate to the court that words might not? These considerations undoubtedly play a role, how much a role will no doubt vary from one judicial officer to another. What I can tell the reader is that I believe that the non verbal messages we send to other people matter, and that Judges are people, therefore my position has always been that it is very important that the presentation of the client be flawless in court. As many attorney can attest, nothing is worse for a client’s case than having a client blurt something out in the middle of a hearing to contradict a statement while having their attorney presenting their case.
Here it is a good idea to point out that the standard of proof for having the court issue a permanent restraining order is by a preponderance of the evidence. (Family Code section 6203). This means that something likely happened, not that there is absolute proof that abuse occurred. One act of abuse if often enough, there is no need to show a pattern of abuse if the single act was sufficiently egregious.
A final note to the reader. Restraining orders are meant as shields, to be protection against abuse, but it has been my observation that the restraining order process is very often used as a sword instead. The issuance of a restraining order can impact child custody. Indeed there is a legal presumption that joint legal and physical custody should not be shared with an abuser. A restraining order can also impact spousal support, creating a presumption that spousal support should not be ordered to the restrained party since this would be tantamount to rewarding the abuser with support and making the victim pay money for her or his freedom from the abuse.
There is a temptation by some litigants to use the restraining order process to gain advantage, whether in a spousal support proceeding or a child custody proceeding, by claiming abuse. The court is aware that this occurs in the court system, but the courts lean towards being “safe than sorry” and issue restraining orders if they feel it is appropriate. I do not advocate, and do not support the use of restraining orders as a form of leverage. My hope is that one day the San Diego Court will start referring clear cases of abuse of the DVRO process to the district attorneys office and that the District Attorney will actually prosecute cases where there is clear evidence of abuse of legal process and perjury on the part of requesting parties.
Restraining Order Legal Services in San Diego
If you are a victim of abuse, or if you have a restraining order request that was issued against you and you wish to speak with a San Diego lawyer about your case, please do not hesitate to contact The Law Office of Anton L. Georghiou at the button below.