Domestic Violence & (Temporary) Restraining Orders in Family Court

Domestic Violence is defined under the Family Code as abuse perpetrated against a spouse, former spouse, cohabitant, former cohabitant, a person in a dating relationship, a person with whom you have had a child, or any person related by consanguinity or affinity within the second degree. (Cal Fam Code § 6211)

Abuse is also defined by the Family Code for purposes of obtaining or defending against a request for a Temporary or Permanent Domestic Violence Restraining Order as follow,

(a) For purposes of this act, “abuse” means any of the following:

(1) To intentionally or recklessly cause or attempt to cause bodily injury.

(2) Sexual assault.

(3) To place a person in reasonable apprehension of imminent serious bodily injury to that person or to another.

(4) To engage in any behavior that has been or could be enjoined pursuant to Section 6320.

(b) Abuse is not limited to the actual infliction of physical injury or assault. See- FAMILY CODE – FAM

In order to obtain a Temporary and/or Permanent Domestic Violence Restraining Order it is not necessary to prove that physical or sexual abuse has occurred; a threat of physical or sexual abuse can be sufficient to establish the need for a DVRO and provide a legal basis for the Court to issue the restraining order.  Abuse is defined by Cal Fam Code § 6320 widely to include any of the following behaviors,

(a)molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, credibly impersonating as described in Section 528.5 of the Penal Code, falsely personating as described in Section 529 of the Penal Code, harassing, telephoning, including, but not limited to, making annoying telephone calls as described in Section 653m of the Penal Code, destroying personal property, contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party. See- 2005 California Family Code Sections 6320-6327 Article 1. Ex Parte Orders

Proof of any of these actions alone or in conjunction with any of the other factors will be considered in totality by the Court. Both parties will be given the opportunity to testify and call witnesses on their behalf to support or dispute the allegations of Domestic Violence.

The party who is successful at a Domestic Violence Restraining Order Hearing may be entitled to have the other party pay all or a portion of their attorney’s fees. (Cal Fam Code § 6344) If a proper request for attorney’s fees is made the Court will determine based upon the respective incomes of the parties and other relevant factors whether such an order is justified,

(b) In any action in which the petitioner is the prevailing party and cannot afford to pay for the attorney’s fees and costs, the court shall, if appropriate based on the parties’ respective abilities to pay, order that the respondent pay petitioner’s attorney’s fees and costs for commencing and maintaining the proceeding. Whether the respondent shall be ordered to pay attorney’s fees and costs for the prevailing petitioner, and what amount shall be paid, shall be determined based upon (1) the respective incomes and needs of the parties, and (2) any factors affecting the parties’ respective abilities to pay. (Cal. Fam. Code, § 6344)