After identifying your spouse’s or partner’s behavior as domestic abuse, your next step is to consider the options you have available to you. What step(s) you decide to take must be premised on the degree of danger you have been surviving. When making your decision(s), especially as to whether you need to seek the safety of a domestic violence shelter, listen to your ‘gut feeling’ as to the level of abuse your spouse has committed against you or threatened to commit. Should you need the assistance of a domestic violence shelter, two shelters in Orange County are: Laura’s House and Human Options, in addition the domestic violence hotline is 800-799-7233.
Most importantly, when you call either the hotline, shelter, or an attorney, make sure you do not use a phone where your spouse can identify who you are calling (such as dialing the last call made, recent calls, or looking at a telephone bill). Always think one step ahead, as to a safe phone plan and/or the manner in how you are seeking help. When you are deciding how and what action you need to take to protect yourself and the children, it is of the upmost importance to always remember your spouse will take whatever steps he/she feels necessary to maintain control over you. This is what domestic abuse is, asserting some degree of power to control you. As such, the most dangerous time is when one of the following events have occurred: you are in the process of or have just left the relationship; you succeeded in obtaining a restraining order; and/or you obtained a Court order, such as a custody order. While this should not be a hindrance in taking steps to protect yourself and the children, you must remember to implement every possible means in which to stay safe.
The first legal step you can take to protect yourself from domestic abuse is to file a request for an ex parte domestic violence restraining order. To qualify for a domestic violence restraining order, you must meet the relationship status requirements, as well as to the forms of domestic abuse committed against you and/or the children.
The forms of abuse, which the Court may order your spouse to stop committing against you, are defined in Family Code, Section 6320. Where in addition to physical and sexual abuse, the Court can order your spouse to not: falsely personate, harass, telephoning, destroying personal property, direct or indirect contact with you, staying a set distance from you and indicated places, exclude from a residence where there is a showing of the right to occupy; and disturbing your peace. It is important to remember that domestic violence is not only physical and sexual abuse, but includes emotional abuse and disturbing your peace, especially when the children are present at the time your spouse is emotionally abusive to you. Disturbing your peace as been defined as a “conduct that destroys the mental or emotional calm of the other person.” (In re Marriage of Nadkarni. (2009) 173 Cal.App.4th 1483.)
To request a domestic violence restraining order you will need to complete and file the Judicial Council form DV-100. Should you be requesting child custody orders, you will also file Judicial Council form DV-105, and should you be seeking attorney’s fees and/or support, you will also file an Income and Expense Declaration (Judicial Council form FL-150). In addition, there is the issue of notice, and whether it is safe to give ex parte notice. If you are afraid of what he/she might do to you upon giving notice, Family Code, Sections 6300 and 6326, states an ex parte restraining order request shall not be denied solely because no notice was provided to the other party.
The importance of ensuring these Judicial Council forms are accurate and thorough, cannot be stated enough. Upon filing an ex parte domestic violence restraining order request, you are asking the Court to grant you the immediate temporary relief, which you requested in your Judicial Council form(s). The Court will either: grant pending the evidentiary hearing; deny; or deny pending the evidentiary hearing.
Remember that while you personally know everything you have been enduring and living through, the Court does not have this knowledge. In determining whether to grant the temporary domestic violence restraining order, the Court only knows what it reads in your Judicial Council form(s). Should you not provide a complete and detailed accounting of the abuse committed against you and/or the children, the Court may not grant your request. Further, the DV-100 is what provides your spouse and/or partner with what is called “notice” of what acts he/she committed and why the Court should grant you a domestic violence restraining order. If you do not raise an incident in your DV-100 form, the Court may refuse to allow you to present evidence as to that incident, as your spouse was not given notice and therefore no opportunity to prepare for the evidentiary hearing as to that incident.
At the evidentiary hearing, the Court will hear evidence through means such as documents, recordings, videos, photography, and the testimony of witnesses. To successfully submit and move for an exhibit to be submitted into evidence, the Code of Evidence and other statutes must be followed. This can be extremely challenging for a person to do without the assistance of legal counsel. Our firm can assist you with the initial filing, as well as preparing for and representing you at the hearing. As this is an extremely emotional and frightening process, we are committed to emotionally supporting you and advocating on your behalf. Upon the Court granting a permanent domestic violence restraining order, it shall be for a duration of no more than five years (Family Code, Section 6345).
The granting of a permanent domestic violence restraining order is one means in which to protect yourself and the children from your spouse’s or partner’s abuse. However, you must also take steps such as: giving certified copies of the order to any facility where your children might be (for example: daycare and the children’s school); checking with the local police to make sure they have received this order through the California Law Enforcement Telecommunications System, submitted by the Court. Remember to always keep a certified copy of the order with you In addition, you need to take steps to protect yourself, some ideas are to: change the locks to the house (assuming you received a move out order); change passwords to something your spouse will not guess; and inform neighbors your spouse should not be around the house and to call the police immediately, as well as notify you, if they see your spouse around your home.
The purpose of a permanent domestic violence restraining order is to protect you and the children from your spouse’s or partner’s abuse, and is based on your fear of future acts of domestic abuse towards you. However, the issuance of a permanent domestic violence restraining order will also factor into the issues of attorney’s fees, custody, and spousal support.
If you need assistance for your attorney’s fees and costs, and you are the prevailing party after the evidentiary hearing, the Court may order your spouse/partner to pay/contribute towards your attorney’s fees. You need to have given notice that you are seeking attorney’s fees and costs from your spouse/partner in the DV-100 Judicial Counsel form. You also must be the prevailing party, with the Court considering your spouse’s ability to contribute, and your need of a contribution towards your attorney’s fees and costs. Remember you need to have filed the Income and Expense Declaration with your Judicial Council forms, for a attorney’s fee award to be considered by the Court during the domestic violence restraining process.
If you have requested a custody order in your DV-100 and DV-105, the Court shall make a determination whether Family Code, Section 3044 applies. When the Court finds the party requesting custody, has within the previous five years, committed domestic abuse against the other parent seeking custody, or against the child or child’s siblings, there is a “rebuttable presumption that an award of sole or joint physical or legal custody to a person who has domestic violence, is detrimental to the best interests of the child.” This is rebutted by a preponderance of the evidence, and the party who committed the domestic abuse has to show that sole or joint physical or legal custody is in the best interest of the child. The Court considers various factors, including but not limited to: successfully completed batter’s treatment program; successfully completed alcohol/drug treatment; whether committed further acts of domestic abuse; and/or completed parenting classes. Overall, the Court determines what is in the best interest of the child, when domestic violence has been found to have occurred within the last five years of the request for custody.
If your spouse is criminally convicted of a domestic violence misdemeanor five years prior to either party filing for a dissolution of marriage, while it is a rebuttable presumption, an award of spousal support to your convicted spouse paid by you is prohibited (Family Code, Section 4325). Further, in determining permanent spousal support, the Court considers the Family Code, Section 4320 factors, which includes a history of domestic violence. Your emotional distress from your spouse committing domestic abuse against you is a factor, as well as any history of you committing violence against your spouse. While these are only two of the factors within the thirteen factors, the years in which you endured domestic abuse by your spouse is a significant factor. This is especially true when the domestic abuse has impacted your ability to obtain an education, employment, and as to the hardships the abuse has caused you.
The stress domestic abuse and the significant impact abuse has on your self-esteem, makes the process of obtaining a domestic violence restraining order, extremely challenging and difficult. Further, the process of completing the Judicial Council forms accurately and thoroughly to reflect the abuse you have endured, as well as presenting the evidence at the Court hearing can be overwhelming. We understand this, and will provide you with the emotional support and legal expertise to advocate on your behalf.