What Is Domestic Violence & Abuse? Navigating the System With a Domestic Violence Attorney

‍Defining Domestic Violence

The Domestic Violence Prevention Act (or the DVPA), which passed in 1993 in California, provides victims of abuse (otherwise known as “the protected party” under a restraining order) with much needed remedies to combat domestic violence perpetrated by others (commonly referred to as the “restrained party”).

In addition to causing bodily injury, abuse may also mean sexual assault or placing a person in reasonable apprehension of imminent serious bodily injury. Further, the DVPA protects against a host of other forms of abuse, including but not limited to attacking, striking, stalking, threatening, battering, harassing, destroying personal property, disturbing the peace of the other person, and coercive control.

The nuances between these types of abuse can be complicated. Seasoned domestic violence attorneys can help protected parties take legal action with confidence—and with the utmost privacy and discretion.

What Relationships Can Qualify as Domestic Violence?

While domestic violence is often only associated with violence between married partners, that isn’t always the case. No matter race, age, level of education, or socioeconomic status, domestic violence can impact all types of relationships. Protected parties may include:

• Spouses, including husbands, wives, and domestic partners
• Romantic partners, including boyfriends, girlfriends, and fiancés
• Former spouses and romantic partners, including past husbands, wives, girlfriends, boyfriends, and other romantic partnerships
• A cohabitant or former cohabitant, defined as a person who regularly resides or formerly resided in the household
• Parents of a shared child or children
• Close relatives through blood or marriage, like aunts and uncles, siblings, or grandparents

Because of the complexity of these cases, finding an expert domestic violence attorney as soon as possible is vital to ensure that protected parties have a strong case to best protect themselves from future abuse. Likewise, it is highly important for the restrained party to ensure that they have a strong case to protect themselves from false claims.

Does Domestic Violence Require Physical Abuse?

Though physical abuse is often the first thing people think of when they hear “domestic violence,” abuse comes in many forms—and encompasses much more than physical harm. Psychological, financial, and emotional threats are all ways abusers can manipulate and threaten their victims.

All these types of abuse have one thing in common—the abuser creates a cycle that ensures the victim does not end their relationship. Often, victims are in denial about the extent or nature of the abuse. California state law is designed to protect the victims, with a wide range of different types of abuse and violence considered illegal. Coercive control, verbal abuse, and exerting financial control all fall under the umbrella of domestic abuse in the state.

When leaving the abuser, victims must have a plan in place to ensure their safety, especially when the victim and abuser live or work together. Working with a domestic violence attorney can help the victim take the necessary steps, like a temporary restraining order or other legal action, for added protection when the victim needs it most.

Different Types of Abuse & Restraining Orders

There are many types of domestic abuse. Common types of conduct that constitute abuse include but are not limited to the following:

As mentioned above, disturbing the peace is a specific form of abuse. What does this mean? The Family Code provides guidance: it is when one’s conduct destroys the mental or emotional calm of the other. One can disturb the peace of another directly or indirectly and via any platform of technology, including phone, online accounts, text messages, etc.

This type of conduct may also include coercive control, which is a “pattern of behavior that in purpose or effect unreasonably interferes with a person’s free will and personal liberty.” Some examples of coercive control include isolation from friends and family, deprivation of basic necessities, controlling/monitoring of movements, day-to-day life, finances, threats regarding immigration status, and even reproductive coercion.

In these cases, a protected party’s first step toward an abuse-free future can be to request from the court a domestic violence temporary restraining order against the perpetrator of domestic violence.

A temporary restraining order can be approved on the same day it is submitted and can provide immediate protection. From there, seasoned domestic violence attorneys, like those at Cage & Miles, can support protected parties in pursuing further legal action and ensuring that they are taking the proper steps to remain protected.

Conversely, once a restrained party is served with a temporary restraining order, it is of the utmost importance to abide by the orders contained in the paperwork received, as a violation of a temporary restraining order constitutes a criminal violation of the law. This is true even if the restrained party does not agree with or disputes the basis for which the temporary restraining order was granted.

A hearing will be set in about 21 days from when the temporary restraining order was issued. A restrained party is entitled to a first-time continuance of the initial hearing if the restrained party does not believe he or she has enough time to prepare a defense for the hearing. The domestic violence attorneys at Cage & Miles are here to assist in getting the hearing continued, which will allow more time to strategize and build a defense.

What Types of Restraining Orders Are There and What Exactly Do they Do?

Depending on the type of domestic violence and the relationship between the protected and restrained parties, there are several types of restraining orders available. A domestic violence attorney can help a party to a restraining order by immediately filing for the correct restraining order or the response to the same based on the circumstances.

Domestic Violence Temporary Restraining Order

These restraining orders are used to protect people from domestic violence or harassment. It restricts the restrained party from coming within 100 yards of the victim’s person, their home, job/workplace, vehicle, school, and other locations if so requested. Additionally, the restrained party is ordered not to contact the victim by any means or through any other third party. A temporary order may last up to three weeks, at which point the Court must decide whether to make the temporary order permanent (up to five years.)

Civil Harassment Restraining Order

A civil harassment restraining order is used when the protected party is being harassed, stalked, or threatened, but doesn’t have the type of relationship for it to be considered a domestic violence case. This could include roommates, distant family members, or acquaintances.

Emergency Protective Order

These orders are issued at the request of law enforcement when they believe someone is in danger of domestic violence. They are often issued after the police are called to a residence due to a disturbance.

Some additions can also be made to temporary restraining orders and domestic violence restraining orders:

• No Firearms (Guns), Firearm Parts, or Ammunition: Judges can grant these orders to prevent the restrained party from owning or buying a firearm. If they already own a firearm of any kind, it must be turned in, sold, or stored. The restrained party would also be prohibited from buying firearms (guns), firearm parts, and ammunition. This is a highly important consideration if the restrained party’s job requires them to carry a firearm as part of their uniform. However, the court may grant an exemption to this order if the restrained party can show that carrying a firearm or ammunition is necessary as a condition of continued employment and that the current employer is unable to reassign the restrained party to another position that does not require a firearm or ammunition.
• Order for Removal from Residence: Also known as a “kick-out order,” this order legally forces the restrained party to vacate the residence for a set time.
• Animal Protection: Temporary Restraining Orders allow the Court to order protection of animals or animals of children and grants sole possession of the animals to the protected party.
• Control of Property: Judges may also grant protected parties to a Temporary Restraining Order exclusive use, possession, and control over certain properties, such as homes or vehicles.
• Health Insurance: A Court may order the restrained party not to make any changes to any insurance or other coverage for the protected party, including not being allowed to cancel, cash, borrow against, transfer, dispose of, or change the beneficiaries for the insurance.
• Record Communications: The protected party may be allowed to record calls or communications with the restrained party, when such calls or communications violate the temporary restraining order. This is especially unique because it bypasses the law in California that requires the consent of both parties to record communications when there is a reasonable expectation of privacy that the communication will be kept private.
• Property Restraint:If the parties to a temporary restraining order are married or are registered domestic partners, then the Court may order the restrained party not to borrow against, sell, hide, get rid of or destroy any possessions of property, except in the usual course of business or for necessities of life.
• Pay Debts (Bills) Owed for Property: In some instances, the Court may even order the restrained party to pay for all or a portion of a bill, such as monthly rent, mortgage, car payment, etc.
• Pay Expenses Caused by the Abuse: If the restrained party caused direct damage (damaged property, medical care, counseling, temporary housing, etc.), the Court may order the restrained party to pay for expenses related to said damages.
• Batterer Intervention Program: The Court may order a restrained party to attend a 52-week batterer intervention program, the goals for which are to stop the abuse, teach accountability, abuse effects, and gender roles.
• Transfer of Wireless Phone Account: If the restrained party holds the rights to the victim’s cell phone account, the judge may order the restrained party to transfer that number back to the protected party.

Common Domestic Violence Questions Answered Now

Domestic violence cases can be overwhelming to navigate. There are complicated legal nuances, especially if children are also involved. Experienced domestic violence attorneys, however, will be able to support clients and help them get their desired outcome, whether they are the protected party or the restrained party.

During an initial consultation, domestic violence attorneys will walk clients through what is needed to prove their claims, and help figure out the next best steps.

Commonly asked questions often involve child or spousal support, living arrangements, and the financial implications of domestic violence. Though these vary from state to state, below are the answers to a few commonly asked questions in California. A domestic violence attorney, however, will provide more specific guidance and tailor their approach for every case.

How Can a Restraining Order Impact Child and Spousal Support?

In California, when a Court is considering an appropriate order for spousal support, the court must consider all documented evidence of any history of domestic violence between the parties or by either party against their child. The Court will consider the following:

• A plea of nolo contendere (“no contest”) in criminal settings
• Emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party
• Any history of violence against the supporting party by the supported party
• Issuance of a protective order after a hearing (a permanent domestic violence
• restraining order)
• A finding by a court during a divorce, separation, or child custody proceeding that a spouse has committed domestic violence.

Child support can be ordered in cases of domestic violence. The courts will determine the appropriate amount of support, and either party to a restraining order will still be held responsible for making payments.

It is important to note, there is a presumption that a parent who has been found to have committed domestic violence should not be awarded sole or joint legal or physical custody, as that would be detrimental to the child(ren)’s best interests. Because the time a child spends with each parent factors heavily into a child support calculation, a finding of domestic violence against one parent may severely impact their time with the child(ren) and, in turn, the amount of child support they will be ordered to pay.

This presumption can be overcome by a parent who has been found to have committed domestic violence and is requesting more time with their child(ren).

What About Our House?

As mentioned above, protected parties to a restraining order have several rights under California state law with regard to real property. The Court may remove and exclude the restrained party from the marital/shared residence, even if the restrained party’s name is on the lease/mortgage. The Court may also order the restrained party to still maintain expenses related to the real property, such as rent, mortgage, utilities, etc., even after being excluded.

If the protected party needs to find safe housing, a domestic violence attorney with Cage & Miles can seek child and spousal support for the protected party.

What About Our Children and Custody?

When a parent has committed domestic violence, it can impact their ability to gain custody of their child for up to five years. If there is a history of domestic violence, judges will not typically grant joint or equal parenting time to the parent with the abusive history, though they may be granted visitation. However, if there is documented child abuse, the judge may determine that the child should have no contact with the abusive parent, or that the contact must be limited and monitored by a professional (or nonprofessional) supervisor.

This is a rebuttable presumption that is triggered once a finding of domestic violence is made against one parent. It is rebuttable by a standard of proof called a “preponderance of the evidence”. Coincidentally, this is the same standard of proof required of the protected party to demonstrate that a permanent restraining order is necessary. Essentially, a protected party must demonstrate that is is more likely than not that the abuse occurred and, if the Court makes a finding of domestic violence against the restrained party and there are children involved, then the restrained party must also show it is more likely than not that a shared physical or legal custody is not detrimental to the children’s best interests.

What About Attorney Fees?

Applying for and being granted a Domestic Violence Restraining Order is typically a very costly endeavor, given how fact-intensive each case is and how often the restrained party tends to vigorously defend against it. As such, both parties may incur significant attorney fees and costs. However, each side is entitled to request that the other reimburse their attorney fees and costs incurred in relation to the domestic violence action, depending on the outcome of the request for the restraining order.

As of January 1, 2023, the California State Legislature codified new language governing the payment of attorneys fees and costs in domestic violence cases. The code provides that a prevailing Petitioner shall be awarded attorney’s fees and costs paid by the restrained party, provided the party ordered to pay has, or is reasonably likely to have the ability to pay.

The standard by which the Respondent to a restraining order may seek “prevailing party” fees is more nuanced. They must establish by a preponderance of the evidence that the petition or request was frivolous or solely intended to abuse, intimidate, or cause unnecessary delay. Again, any fee award made is subject to the Petitioner’s ability to pay or reasonable likelihood of the ability to pay.

How Is a Divorce Different Because of Domestic Violence?

While divorce is already an emotionally difficult process, it can be made even more complicated in cases of domestic abuse or violence. There are a few key factors that can impact divorce proceedings, including:

• Law enforcement involvement: Law enforcement involvement may become necessary for custody exchanges, property retrieval, service of restraining orders, and overall keeping the peace.
• Living arrangements: Remaining in the home with an abusive spouse during divorce proceedings can lead to additional violence. If the restrained party is not ordered to move out of the marital/shared residence, the protected party should consider moving in with friends, and family, or seeking alternative housing options for their physical and psychological protection.
• Increased litigation and cost: Requesting and/or obtaining a restraining order will increase the litigation and often high conflict nature of a divorce case. Attorneys and litigants will need to consider all of the legal, financial and other practical implications of a restraining order in place between two people who share finances and children.
• Property, support, and custody: As discussed above, a documented history of domestic abuse or violence can impact child custody orders and child support payments. Likewise, in divorce proceedings where there is a criminal conviction for a violent sexual felony or a domestic violence felony perpetrated by one spouse against the other within the previous five years, then the victim shall be entitled to 100 percent of the community property interest in the retirement and pension benefits of the injured spouse. (Rather than just 50 percent.)

Your Next Steps

Ready to Take the Next Steps to Protect Yourself Against Domestic Violence?

Contact the Cage & Miles family law attorneys today for a consultation to help you navigate the legal system. If you’re looking for additional resources before reaching out, we understand. Here’ are two resources for domestic violence victims and those at risk in San Diego:

• San Diego Volunteer Lawyer Program, who provide much-needed legal assistance to vulnerable, low-income San Diegans.
• San Diego Family Justice Center, who provides confidential, comprehensive services to anyone who has experienced domestic violence, family violence, elder abuse, sexual assault, or sex trafficking.

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