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 Effect of Mutual Domestic Violence Restraining 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 a Mutual Domestic Violence 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.
In Isidora M. v. Silvino M., 239 Cal.App.4th 11 (2015), the wife, Isidora, filed a request for a domestic violence restraining order against her husband, Silvino. Silvino’s responded that he did not agree to his wife’s request for a domestic violence restraining order and went on to provide evidence that Isidora had been arrested for spousal battery and was subject to a criminal protective order. However, Silvino failed to request his own domestic violence restraining order against Isidora. After an evidentiary hearing on the matter, the result was that the trial court issued a five year mutual restraining order protecting both parties from each other. Upon review, the Court of Appeals held that a trial court may issue mutual domestic violence restraining orders only if both parties have filed requests for such relief. The purpose of this rule is to give necessary notice to the opposing party and provide the opposing party with the opportunity to defend against the entry of a restraining order.
The Court of Appeals also held that a trial court may not substitute the bare fact of a guilty plea to domestic violence for detailed findings of fact indicating that a party acted as the primary aggressor and not primarily in self-defense. It was error for the trial court to issue mutual domestic violence restraining orders by relying on Isidora entered plea without first determining the facts of the case.
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