Domestic Violence
Domestic Violence
There are a variety of no contact orders that are available to people to file depending on their immediate need. A domestic violence restraining order helps protect people, parent, and children from abuse or threats of abuse from someone they have a close relationship with.
Emergency Protective Order
This no-contact order can be issued immediately by a police officer that responded to a domestic violence call. They contact a judge and ask that an emergency protective order be issued for you. A judge will only issue it if s/he believes that there is an immediate and present danger of domestic violence or that a child is in immediate or present danger of abuse or abduction/ kidnapping by a parent or relative. These only last five business days, or seven calendar days. This is to give the victim time to go to court and ask for a DVRO.
Temporary Restraining Order (TRO)
This is a no-contact court order of limited duration, about two or three days. A TRO commands the parties in the case to maintain a certain status until the court can hear further evidence and decide whether to issue a preliminary restriction. This can be granted if you are in immediate danger and need protection right away. The TRO can be issued against the party without notice or opportunity to argue against the order. It forces them to leave the home, have no contact with you, and offers you many other forms of protection.
Domestic Violence Restraining Order (DVRO)
These restraining orders are longer in duration because they follow a hearing where the victim is granted a final DVRO. After having a court hearing, a judge can grant you a “restraining order after hearing” that can last minimum of 3 to five years. During the last three months of the order, you can ask the judge to extend it for another fiver years.
When hearing the words “restraining order,” most people think you’re referring to some type of physical abuse where someone needs a court order to be protected from the dangerous actions of someone else.
Automatic Temporary Restraining Orders
However, the Automatic Temporary Restraining Orders (“ATROs” for short) used in divorce cases are something else entirely.
In fact, ATROs are considered the opposite of negative because they help ensure a measure of respect between divorcing spouses. For example, they establish specific ground rules regarding a couple’s assets, insurance policies, beneficiary designations, etc. They are written on the back of the FL-110 form which is also known as a “summons.” The summons is that document served with the divorce petition.
ATROs are mutual court orders that prohibit either spouse from changing the financial status quo of the marriage once a divorce action begins. A few examples of what ATROs prohibit are:
- If children are involved, they may not be moved from California
- Changing bank accounts
- Cashing, cancelling, or disposing of insurance and/or other coverage
- Selling, transferring or borrowing against property
- Borrowing or selling insurance held for the other spouse
- Modifying beneficiaries on policies like health insurance, life insurance, retirement accounts, wills, etc.
- Destroying or hiding assets
Automatic temporary restraining orders stay in effect until there is a court order that modifies it or the petition is dismissed or there is a final judgment. They can be terminated earlier than the final judgment but it takes a court order to do that, which can be stipulated, or agreed upon, orders. The automatic temporary restraining order is not intended to stop conduct that has already started before the petition. Because this is an area that is very factually dense, the advice of an experienced family law lawyer is important.
Residence Exclusion Order
Under California family code, in order to further prevent domestic violence, residence exclusion, also know as “kick-out” or “move-out” order may be issued. This order can be asked only while domestic violence or dependent adult abuse restraining order cases have been filed and are in process. The order tells the restrained person to move out from where the protected person lives, whether it be a family dwelling or dwelling of another, and allows them to take only clothing and personal belongings with them until the court hearing.
These are issued if the person staying in the dwelling has a “right under color of law” to custody of the property, if the person being excluded has assaulted or threatened to assault the other person or any person under the care of that party (i.e. children), and that physical or emotional harm to those parties would result from that person staying in that dwelling.
For the person to be restrained or excluded, having the order against him or her can have very serious consequences:
- Not being able to go to certain places or to do certain things.
- Moving out of his or her home.
- Might lose the ability to see his or her children.
- It may affect his or her immigration status if he or she is trying to get a green card or a visa.
If the restrained person does not comply with the residence exclusion order, they will violate the restraining order and he or she may go to jail, or pay a fine, or both.
No-contact restraining orders can be very useful for providing victims of domestic violence with protections under the law. To assist you in your legal protection, contact Brett Thorsteinson, your trusted and experienced divorce and family law attorney. Offices are located in Long Beach and Huntington Beach, California.
