Within the realm of a Family Law action in California Domestic Violence can be boiled down to disturbing someone’s peace. You can ask for a Domestic Violence Restraining Order in Family Court if 1) you have a close relationship with the person that you’re asking the restraining order against and 2) you are being abused, or threatened to be abused. Assuming the 2 conditions are met you can seek domestic violence restraining orders.
Examples of a close relationship
- You are married person or registered domestic partner.
- You can be divorced or separated, i.e. previously married or previously in a domestic partnership.
- You are dating or you used to date.
- You live together or used to live together, but you would have to be more than roommates. Basically you were living under the same roof and you had some form of relationship.
- You are together the parents of a child.
- You could also be closely related such as parent, child, brother, sister, grandmother, grandfather, in laws.
Disturbing Someone’s Peace
Disturbing someone could mean sending 100 text messages to somebody you have a close relationship within one day and they continuously tell you to stop but you do not. You have disturbed their peace, that could be Domestic Violence. What if you sent 10 text messages? It depends, what did you say? Was it “Hi, I love you” or “Hi I’m going to kill you” or “Hi I’m coming over.”
The point is Domestic violence is not just physical violence. It is no longer confined or seen as just the threat of physical harm or actual physical harm to another individual. It can be in the form of emotional abuse, or basically pattern of behavior that causes the other person’s peace to be disturbed.
For example you physically hurt someone or you physically tried to hurt someone intentionally or recklessly that is Domestic Violence. Sexual assault, Domestic Violence. Making someone reasonably afraid that they’re about to be seriously hurt, like threatening or promising to harm somebody, that can be Domestic Violence. Behavior that is harassing, stalking, threatening or hitting someone, or disturbing somebody’s peace, destroying somebody’s personal property, all of the above or any of them can qualify as Domestic Violence.
Where to File a Domestic Violence Action
It is important to know any courthouse in California can take your Domestic Violence action. If you are a resident of Orange County but you believe your victim of Domestic Violence you can go file in Long Beach Family Court. If you live in LA county you can go to Downtown to file your action, you can go to Norwalk or any California courthouse because the law wants to make numerous forums available for the victims of domestic violence. It makes sense because typically if someone is filing for DV they are running away from a perpetrator who is likely to reside in the county they used to live in.
The flipside is this encourages forum shopping. For example Norwalk has a smaller courthouse and Downtown LA has a larger courthouse. Norwalk has a greater likelihood of favoritism, Downtown LA not so much. So to some extent depending on the reputation of a courthouse or a reputation of a judge if you’re being told that you can file in any county or courthouse to seek protection it does somewhat encourage forum shopping because you might have a greater likelihood to succeed in one courthouse versus the other. Another fact: even if you have already filed your Divorce and your Divorce is filed where you live you can still file my DV action in another county because you think you have more chances at succeeding with that courthouse.
Ultimately your case may be brought back to the county in which you live but for the initial Temporary Restraining Order that one seeks, one can go to any courthouse to get that assistance.
Filing For Domestic Violence As a Non-Resident
What if if you are not a California resident, but you are here, can you ask for help? Yes, you do not have to be a California resident. The court can exercise Emergency Jurisdiction because of Domestic Violence and if you are traveling from another state to California and you allege you are victim of domestic violence as you are going through you can go file and ask for a Restraining Order to protect yourself even if California may not have jurisdiction it may exercise Emergency Jurisdiction to rule under Domestic Violence.
Impacts of Domestic Violence Orders
Domestic Violence orders can have an enormous impact on your job, your ability to work, your relationship with law enforcement, your relationship with your child and much more.
Domestic Violence in the context of Custody is intended to be used as a shield, not a sword and often the courts are required to look at the fact pattern to determine whether they are truly dealing with a victim of abuse or whether that individual is in the courthouse to gain an advantage on Custody.
Why is getting a Domestic Violence Restraining Order, or what we call a CLETS order, something a Family Law litigant would want? If you’re a protected under a CLETS order and there is custody involved then the person against whom the restraining order is issued, if it’s a permanent CLETS order, has to deal with Family Code section 3044 which is a presumption that you are not entitled to have contact with your child if you have committed Domestic Violence or perhaps you will get monitored visitations so you get to see your child in a controlled environment, perhaps for a few hours at a time and you may take a year anger management courses, any unlawful communications will be recorded, you will have to turn in all your any firearms to either a gun dealer for safekeeping or to the police, you will likely be asked by the court to take co parenting classes and it will take you, in our experience depending on the case, somewhere between 3 months to a year to slowly make your way back up to get un-monitored visitations and ultimately a significant amount of time with your child.
Hence why we don’t want to use it as a sword to gain advantage in Custody litigation; instead we want to protect people who need help and who have been abused. They deserve protection from their abuser assuming that is in fact what occurred.
That’s why a domestic violence action can have a tremendous impact on custodial time.
By the way if the child is a protected party in addition to the other parent then the perpetrator of domestic violence cannot go close to their house, their work, their school, they have to stay away.
Also once you get a CLETS order when a law enforcement officer pulls you over the are able to see that those orders and they will enforce a CLETS order as in you can get booked and jailed if you violated a Domestic Violence Restraining Order.
How about the impact on your job? What if you work in a securities firm that handles other people’s money. Can this be an issue to your license? Will you lose it? You probably should see an attorney that has experience in that field. How about if you are school administrator. Does having a Domestic Violence restraining order impact your ability to work? Probably. What if you work in a woman shelter? Absolutely. So depending on the license you have and depending on who you work for having, a restraining order issued against you can impact your job. What if you are a law enforcement officer? We have had clients who are police officers and who have been the subject of restraining orders and that can impact their ability to keep their position. For instance how are you supposed to be a police officer if you have to turn in your firearms? By the way are you going to turn it in the department in which you work yourself to your buddy? Maybe you’re going to be on desk duty for a very long time.
The point is we do want to make sure that people are protected; now there might be alternative solutions such as a stay-away orders as opposed to domestic violence prevention orders. A Stay Away Order is a contract between two people where one or both parties agree to stay away from each other. To be fair, the police will not enforce a Stay Away Order. It does not have the same kind of teeth a CLETS order has, but if the victim of Domestic Violence would agree and would feel safe with a Stay Away Order that perhaps is combined with some form of therapeutic treatment for the perpetrator of Domestic Violence to get help with their anger or behavior issues that may be an alternate solution. Why? Because when that perpetrator of Domestic Violence loses their job as a result of CLETS order, at what cost do you see the protection? Now this may not be an appropriate way of thinking about it but if we focus on the victim of domestic violence if they get the protection of a CLETS order but then the person who provided for that family no longer makes money how is Child or Spousal Support going to be paid? Has the person seeking the restraining order thought about the consequences of seeking a CLETS order and especially if they’re seeking it as a sword as opposed to a shield to gain an advantage on Custody. Have they considered whether it is in the best interest of your children not to get child support if the person loses their job?
When the court issues a CLETS order the court has the discretion to have it last between 3 to 5 years so the impact of that order will last for years.
An Alternate Solution to a CLETS Order
An alternate solution to a CLETS order that in our view can protect the abused individual can be, assuming they are comfortable with this solution, the combination of the following:
- Entering into a contract that stipulates a Stay Away Order,
- Provide for what can call “Safety bumpers” meaning address the conduct that led to the circumstances and have a professional involved (anger management therapist, mental health provider if the person needs therapy, etc),
- If necessary, order a 730 Child Custody Evaluation if a child is involved. Why? Because if in fact there is an allegation that there is a deeply rooted issue of violence or anger then it is not sufficient to just seek a restraining order. It would probably be appropriate to seek the help of an independent expert to look into the situation from all angles and give a recommendation to the court whether or not they believe the conduct of the perpetrator amounts to Domestic Violence and whether to conduct in question should be a basis for minimized custodial time.
By the way you do not need a CLETS order to have supervised visitations. You could have no Domestic Violence order but because somebody’s behavior is still inappropriate and not in the best interest of a child you can still get Monitored Visitation orders.If the goal is to monitor that person’s conduct to ensure that a child is safe you can still achieve that without a CLETS order.
What The Court Does In a CLETS Hearing
The court will ask whether Domestic Violence occur yes or no. If the answer is “YES:” Family Code section 3044 presumption applies, i.e. you don’t get to spend time with your kid and/or you get monitored visitation until you take the necessary steps to prove the court otherwise. If the answer “NO:” the court does a standard best interest determination to determine what custody orders are appropriate.
Example: Mom alleges Dad committed Domestic Violence. The family has two children. They go through the process and the court says “we find no Domestic Violence occurred, now we’re going to have a hearing on how much time you should each have.” Mom will still be able to use the same facts she alleged that they were Domestic Violence to still allege, even if those actions by Dad did not amount for Domestic Violence, that they are still not in the best interest of the children and therefore Dad’s time with the children should be limited and he should get Anger Management classes and/or have monitored visitation etc… That is still possible even if the court determines there is no Domestic Violence findings.