Domestic violence restraining orders are not issued absent ugly accusations. When a party files for a restraining order, part of the process requires they describe to the court why they believe a restraining order is necessary.
The first step in obtaining a restraining order is filing a request with the court. The court takes restraining orders very seriously, because by issuing one, they are making an order that directly inhibits another person’s constitutional rights. This is not something judges or the court system take lightly.
After reviewing the request, the court weighs all of the facts and determines whether there is a need for a restraining order. If so, the judge will issue a temporary restraining order (TRO) and a court date. This temporary restraining order is only in effect for two (2) weeks.
During this time period, the person petitioning for the restraining order must have the other party properly served with the documents, which further notifies them of the upcoming court date.
The court hearing is scheduled to allow the person whom the restraining order is being requested against an opportunity to be heard in court. This is a due process right granted to everyone in the constitution.
If a restraining order has been requested against you, it is imperative to attend this court hearing. Your attendance allows the judge to hear both sides of the story, to determine the risk to the parties if the court order is not granted, weigh the credibility of both individuals, and determine the likelihood of whether the allegations are in fact true.
Should you choose not to attend the court hearing, your side of the story will not be taken into account, and the judge has no option other than to solely consider the facts being presented before him/her by the person requesting the order.
Many people underestimate how important it is to obtain counsel or at least consult with an attorney prior to the court hearing when a temporary restraining order has been filed against them.
Our office receives numerous phone calls from individuals seeking help with restraining orders, but oftentimes it is the day before the court hearing, or only hours in advance. At that point, there is not much we can do for them.
Consulting with an attorney is crucial because of the serious impact having a restraining order granted against you can have on your everyday life.
Once a restraining order is set in place, there will be places you cannot go or things you cannot do. You may be ordered to move out of your home, your ability to see your children may be impacted, you will not be able to own a gun, or will be ordered to give up ones you have. A restraining order may even impact your immigration status. Furthermore, if you violate the order, you could face very serious consequences - fines, jail time, or both.
One of the most significant ways a domestic violence restraining order can impact your life is the effect it can have on child custody arrangements. Pursuant to Family Code §3044, “a custody litigant found by the court to have perpetrated domestic violence in the past five years against the other party, the child, or the child’s siblings must overcome a presumption that a sole or joint or physical custody award to him or her would be detrimental to the child.”
This means that if the other party has been successful in obtaining a domestic violence restraining order against you, in a custody proceeding, the court will automatically presume it would be detrimental to the child or children to be in your care.
However, it may be possible for you to rebut this presumption. The court must consider whether:
You have shown that awarding you sole or joint or physical custody would be in the child’s best interest
Whether you have successfully completed a batterer’s treatment program meeting certain criteria
Whether you have successfully completed a program of alcohol or drug abuse counseling, if appropriate
Whether you have successfully completed a parenting class, if appropriate
Whether you are currently on probation or parole and whether or not you have complied with the terms and conditions of such
Whether you are currently restrained by a protective order or restraining order and whether you have complied with the terms and conditions
Whether any further acts of domestic violence have occurred.
Once someone has requested for a temporary restraining order against you, it is vital to immediately begin steps against having a permanent restraining order set in place.
Even if a permanent domestic violence restraining order is already issued, it is important to begin to make strides to make sure it is not re-issued. If you need assistance in how to respond to a restraining order or further information regarding any of the above, please contact Cage & Miles, LLP.