A family argument can become very emotional and possibly result in physical harm. And when it does, the argument often ends with one spouse calling the police to make a report. Should this happen to you, here is what to expect when you are arrested either at the scene or later, by a warrant. Remember, your failure to address an act of domestic violence can not only affect your ability to protect yourself but may also raise questions about your ability to protect your children.
The Law Offices of Edward Misleh, APC is a law firm that practices family law and clients in Northern California with services they need and deserve when addressing all aspects of child custody and domestic violence. Call now our Lawyer Hotline. Call now 321-951-9164.
Domestic Violence
Domestic violence is the willful intimidation, physical assault, sexual assault, or other abusive behavior that is part of a systematic pattern perpetrated by one person in a close relationship with another.
Restraining Orders
A domestic violence restraining order is a court order that protects you from abuse or threats of abuse from a person with whom you share a relationship. You need to seek protection if you, or your child, is being abused. A parent who delays or does not report abuse may not only be exposing themselves and their child to further harm, but may be jeopardizing their rights to custody. Take immediate action if you, or your child, are being abused, to protect yourself and your child.
Close Relationship
You can seek a domestic violence restraining order against someone with whom you share a close relationship, this includes:
- Spouses,
- Registered domestic partners,
- Divorcees or separated individuals,
- Current or former lovers,
- Live-in lovers,
- Other close relations; siblings, parents, and grandparents.
Restraining Order Effects
- No contact with either you, your children, other relatives, or those who live with you.
- Move out of the house you both occupy.
- Stay away from your home, work, or your children’s schools.
- Relinquish all firearms and no possession of a firearm.
- Follow child custody and visitation orders.
- Pay child and/or partner/spousal support.
- Stay away from any of your pets;
- Pay certain bills and release and/or return personal property.
Being Served
Domestic violence restraining orders are issued when a victim makes a request to the court for an order to restrict an abuser’s actions. Domestic violence restraining orders are court orders which restrain one person from contacting or harassing another person.
False Accusations
If you have been falsely accused of abuse and are facing a domestic violence restraining order you need to take immediate action to protect your rights. Should you not act, you may suffer the following effects:
- Limitations on where you can go or what you can do.
- Move out of your home.
- Limit your ability to see your children.
- Restrictions on your right to own or possess a handgun.
Effects on Custody Case
Your child custody matter will be considered as domestic violence case if, within the past 5 years, one parent was convicted of domestic violence against the other parent or a court has decided that one parent committed domestic violence against the other parent, their children, or any siblings of the child. And, there are special rules which the judge must follow in awarding custody should a court decided that one parent committed domestic violence in the past five years against the other parent, their children or siblings of that child.
Rebuttable Presumption
If the Court makes such a finding there is a rebuttable presumption that the party who perpetuated the domestic violence should not have sole or joint custody of the parties’ children. This legal presumption can be overcome and custody may be awarded to the parent who committed the domestic violence if:
- It is in the best interests of the child.
- The perpetrator has completed a 52-week batterer’s program.
- The perpetrator has not committed any other acts of domestic violence.
- The perpetrator has complied with all other court orders.
Emergency Protective Order (EPO)
An EPO, although not a domestic violence restraining order, is a protective order issued at the time of the domestic violence arrest on the request of the arresting officer. The EPO restrains the arrested person from having contact or communication with the protected person and is valid for five (5) to seven (7) days; until the person arrested for domestic battery, criminal threats or stalking has first appeared in court at the arraignment.
Criminal Protective Order (CPO)
A CPO or a “no contact order” is issued in active domestic violence case through the district attorney’s office. Once a CPO is issued, the alleged abuser cannot contact the protected person by using email, letters, notes, or a phone. A CPO is issued to a “restrained person;” someone who has already been arrested, charged, or convicted for committing a crime against a victim.
Domestic Violence Restraining Order (DVRO)
A DVRO is obtained by submitting to a court a signed affidavit alleging facts about why you feel threatened by someone else. Once filed, a temporary DVRO, that is in effect for 10 days, will be issued. A hearing will also be set to determine if the temporary DVRO needs to be extended. You can introduce evidence of abuse or threats against you at this hearing. You should file for a DVRO if the district attorney has issued a CPO for your continued protection. Once an DVRO is issued, the restrained person must relinquish ownership of any firearms in their possession, vacate any shared-living space, avoid all contact with you, and can be picked up on suspicion of violating the DVRO. A DVRO can last up to three years. If a restrained person violates the terms of the order at any time during this period, he could be arrested, prosecuted, and sent to jail.
Stay Away Order (SAO)
A SAO is issued at the first court appearance of a domestic violence or criminal case arraignment. It is valid while the court has jurisdiction over the criminal domestic battery case. If a person is convicted of domestic battery, domestic assault or a related charge such as criminal threats or stalking, the court will have jurisdiction over the person who has suffered an arrest for domestic violence until probation has been completed. Probation in a domestic abuse case typically lasts three (3) years from the date of conviction.
Temporary Restraining Order (TRO)
A TRO is obtained upon request by a an individual who has made a domestic abuse complaint. It is not necessary for a domestic battery, domestic assault, criminal threats or stalking report to have been made with the police. However, it is common for a person who has filed a police report to also seek a TRO. If the person accused of domestic abuse, criminal threats or stalking had been involved in a dating relationship with the accuser at any time in the past, a Domestic Violence Restraining Order (DVRO) may be obtained. If the person accused of stalking had not been involved in a dating relationship at any time in the past, a Civil Harassment Order may be sought.
Move-out Order
A spouse cannot be forced to move out of the family residence unless the court issues a restraining order against that spouse providing for their exclusion from the residence. To seek a restraining order to exclude a spouse from his or her home you must prove an act of domestic violence has been committed by that spouse. Once determined, that spouse can then be ordered to be removed from the residence.
Criminal Actions
Domestic violence laws include both criminal and civil actions which can be used to restrain an abuser from further harming a victim. California Penal Code §836 requires that an abuser be arrested for committing acts of Domestic Violence. This law recognizes both the danger of restraining order violations and the casual treatment by law enforcement for violations of a Domestic Violence Restraining Order. California police are now mandated to arrest offenders who violate domestic violence restraining orders.
Arrest
When you are arrested for a charge of domestic violence you will be booked at the County jail. You will be able to post bail immediately unless you were charged with violating a court protective order, in which case you will be held over to appear at a bail hearing before a magistrate.
Those who are held over for a bail hearing are sent to a special housing unit that is restricted to domestic violence offenders who have no gang affiliations or prior prison term. Inmates must agree to participate in an awareness program and they may be visited by their victims in a visiting area where all conversations are taped.
An attorney with the Domestic Violence Unit will review your case before you are arraigned to determine if you should be prosecuted. This determination is often based on whether or not there is evidence of a visible injury to your victim. Depending on the circumstances, your case can be filed as either a misdemeanor or felony.
Arraignment is held within 48 “court hours” (excluding Saturday, Sunday, and holidays) in the Domestic Violence Home Court five days each week except for holidays. Being arrested on a Friday and not being able to post bail means that you will staying in jail for the weekend. At your arraignment, a public defender will be assigned to represent you if you are indigent otherwise, you will have to hire an attorney should you want to be represented. At your arraignment, the magistrate will set a court date and, unless the victim objects, the court will issue a criminal order of protection.
The plea negotiation process begins at the next hearing after your arraignment. Plea negotiations are held in a judge’s chambers. If no plea agreement is reached at the first hearing, the case is continued for a second hearing. If no plea result occurs at this hearing, the case is set for trial.
After your trial and before sentencing, the court may order a presentence investigation. Orders for a presentence investigation are routinely ordered in a felony case, except where a plea agreement includes a specified state prison sentence. In misdemeanor cases, however, a presentence investigations is less common.
Simple Battery
California Penal Code §243 (e)(1) defines simple battery as intent to willfully inflict force or violence on an intimate partner. An “intimate partner” is a person who has a significant relationship with the abuser, to include: spouses, former spouses, children, former spouses, former cohabitants, or someone who the defendant is, or has, dated.
Aggravated Battery
California Penal Code §243(d) defines aggravated battery is found when the defendant causes serious bodily injury to be inflicted on the person.
Corporal Injury
California Penal Code § 273.5 states that this offense is committed when a defendant willfully inflicts physical injury on an intimate partner that results in a traumatic condition. A “traumatic condition” is defined as a wound or other bodily injury, whether minor or serious, caused by the direct application of physical force.
Convictions
If you are convicted of domestic battery pursuant to California Penal Code Section 243(e)(1), you face a maximum penalty of one year in county jail, a $2,000 fine, and up to three years of probation. If probation is granted, the court will require you to successfully complete a batterer’s program for a minimum of one year.
Child Custody Orders
California Family Code §3044 requires that a California Family Court evoke the presumption that giving custody to a perpetrator of domestic violence is detrimental to the child.
Victims Housing Relocation Funds
California Assembly Bill 606 provides up to $2,000 in housing relocation funds for victims of Domestic Violence. Due to the fact that a victim if often financially dependent on an abuser, housing problems make it difficult for the victim to escape, especially if children are involved. Every Domestic Violence victim in California who reports acts of Domestic Violence to law enforcement is eligible for up to $2,000 to cover costs of housing relocation.
Filing
California Family Code §6228 requires that law enforcement and prosecutors give victims one free copy of the Domestic Violence report within five days of being requested. This allows the victim to then have sufficient information to file for a temporary Domestic Violence Restraining Order.
Victim’s Employment
California Labor Code §230 provides that an employer may not discharge, discriminate, or retaliate against an employee a victim of Domestic Violence who needs time-off from work to take action which will ensure the health, safety, or welfare of a domestic violence victim or their children.
Mutual Domestic Violence Restraining Orders
Domestic violence can be a major problem in family law cases. Acts of domestic violence often lead to one spouse filing for a domestic violence restraining order and then, possibly, the other spouse doing the same. And when both parties act out violently, mutual domestic violence restraining orders may be needed to protect both parties from each other.
The Effects of Mutual Orders
Mutual domestic violence restraining orders limit the conduct of both parties in a family law matter in order to protect the peace and safety of both parties. These orders restrict the conduct of both parties which may include a “no contact order” with each other or a “peaceful contact order.”
Issuing Mutual Restraining Orders
California Family Code § 6305 provides that the “court may not issue mutual domestic violence restraining orders unless (a) both parties personally appear and each presents written evidence of abuse or domestic violence, and (b) the court makes detailed findings of fact indicating that both parties acted primarily as aggressors and that neither party acted primarily in self-defense.” This two-part rule’s application in family law cases has been further discussed in the California Court of Appeals which explained the procedural and substantive standards for issuance of mutual domestic violence restraining orders.
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For more information on domestic violence, click on one of the following links:
Domestic Violence Restraining Orders
Mutual Domestic Violence Restraining Orders
