Are you a victim of domestic violence?
Are you being falsely accused of domestic violence? The goal of this blog is to provide parties with information regarding the issuance of domestic violence restraining orders.
The law regarding domestic violence orders has been broadened and expanded these past several years to include behavior outside of physical violence and sexual assault. For example, stalking, credible impersonating someone, harassing by phone, and harassing by social media/email, are now behaviors prohibited by the domestic violence laws.
1. Purpose:
The purpose of domestic violence preventions laws is to prevent domestic violence, afford legal protection to the victim, and provide for a separation period sufficient to enable the parties to seek a resolution of the causes of the violence (See Family Code §6220),
2. Proof:
Generally, a party must show that reasonable past acts of abuse occurred by a preponderance of the evidence (more likely than not, that something occurred).
3. What is Abuse:
Per Family Code Section § 6203:
a. Intentionally or recklessly cause/attempt to cause bodily injury; or
b. Sexual assault;
c. Place person in reasonable apprehension of imminent serious bodily harm; or
d. Molest, attack, strike, stalk*, threaten, batter, destroy personal property, credibly impersonate**, harassing by phone***, contact directly/indirectly by email/mail or otherwise, and disturb the peace of mind****.
i. *Stalk: Willfully, maliciously, and repeatedly follow a person with the intent to threaten a person or place a person in reasonable fear for his/her safety or that of his/her immediate family. (Penal Code §646.9).
ii. **Credibly impersonate: Knowingly and without consent credibly impersonates a person through electronic means for purposes of harming, intimidating, threatening, or defrauding another person. Electronic means include opening an email account, or profile on social networking websites in another person’s name. (Penal Code §528.5).
iii. ***Harassing by phone: With the intent to annoy, telephones or makes contact by means of electronic communication device, and addresses to or about the other person obscene language or addresses to other person threat to inflict injury to person, property of person, or member of person’s family. (Penal Code §653m).
Makes repeatedly telephone calls or makes repeated contact by means of electronic communication device with intent to annoy.
iv. ****Disturbs the Peace of Mind is Abuse: Examples include sharing personal information of that person to family members and that person’s employer or making threats to disseminate personal information online or social networking sites. IRMO Nadkarni (2009) 173 Cal.App.4th 1483).
4. Required Relationship Between the Parties:
a. Spouse or former spouse, or
b. Cohabitant/former cohabitant (a member of the household not roommate);
c. Current or former dating partner;
d. Party with whom person has children;
e. Grandparents, parents, siblings, and children (Consanguinity to the 2nd degree).
5. Who can be protected:
a. Petitioner and other members of the household;
b. Minors over the age of 12 do not need guardian ad litem (Family Code §6301a).
6. Orders/Relief available:
a. Personal Conduct/Stay Away Orders;
b. Residence exclusion;
c. Pets care;
d. Temporary custody and visitation;
e. Temporary use of property use/debt payment;
f. Parentage by stipulation.
7. Duration:
How long does a restraining order last? Not more than 5 years for protective orders. If silent, default is 3 years. Custody and support orders survive expiration date.
Castleton Law Group
info@castletonlaw.com
(626) 810-9300
17800 Castleton Street, Suite 630, City of Industry, California 91748