Domestic Violence

Domestic violence should not happen to anyone, ever, but it does. If it has happened to you contact the Law Office of Erica C. Affinito. When someone you love is abusing you it is terrifying and overwhelming, but you don't have to put up with it, let me help put you back in control of your life.

Emergency Protective Order

The police can request an emergency protective order on the victim's behalf by asserting to a judicial officer that there are reasonable grounds to believe:

1. A person is in immediate and present danger of domestic violence
2. A child is in immediate and present danger of abuse
3. A child is in immediate and present danger of being abducted by a parent or relative based on a reasonable belief that the person has the intent to take the child or based on an allegation of a recent threat to take the child
4. An elder or dependent adult is in immediate and present danger of abuse *NOTE: a threat of financial abuse alone will not warrant a protective order

If the judicial officer finds that reasonable grounds exist to believe that one of these situations occurs and that an emergency protective order is necessary to prevent the occurrence or reoccurrence of domestic violence or abuse, he may issue an emergency protective order.

The order must include:

1. a statement of grounds alleged for the order
2. date and time the order expires
   
   1. An emergency protective order expires at the close of business on the fifth court day after issuance or on the seventh calendar day following the day of issuance, whichever occurs first.
   
   
3. jurisdiction to specific superior court for the residing county of the victim and
4. this statement:
   "To the Protected Person: This order will last only until the date and time noted above. If you wish to seek continuing protection, you will have to apply for an order from the court, at the address noted above. You may seek the advice of an attorney as to any matter connected with your application for any future court orders. The attorney should be consulted promptly so that the attorney may assist you in making your application. To the Restrained Person: This order will last until the date and time noted above. The protected party may, however, obtain a more permanent restraining order form the court. You may seek the advice of an attorney as to any matter connected with the application. The attorney should be consulted promptly so that the attorney may assist you in responding to the application."

An emergency protective order can include many specific orders including: a protective order as defined in Family Code �§6218, an order for custody and visitation, or an order assigning a temporary guardian for an endangered child but keep in mind that these orders are very temporary and without further court action the protections disappear.

Temporary Restraining Order

An emergency protective order has a statutorily provided expiration making it necessary to seek further court intervention for ongoing abuse. If you are a victim of domestic violence you may file a request for a temporary restraining order even if you do not have an emergency protective order.

Ex Parte

A temporary restraining order is filed with the court as an ex parte (emergency request). This is an unnoticed hearing, meaning the abuser is not given an opportunity to respond to the allegations. Because the court is making orders without hearing both sides the orders are limited to "protective orders" and other domestic violence prevention orders. The court must either grant or deny the orders the same day the paperwork is filed.

Categories of People:

You may be eligible to obtain a domestic violence restraining order if you and the abuser fall into one of the following categories:

1. Spouse (former or present spouse)
2. Cohabitant
3. Dating or Engagement Relationship (former or present relationship)
4. Coparent
5. Child
6. Blood Relative (within the second degree)

Abuse - Level of Proof Required

Abuse is defined by the Family Code as:

1. Intentionally or recklessly causing or attempting to cause bodily injury or sexual assault; or
2. Placing a person in reasonable apprehension of imminent serious bodily injury to that person or another; or
3. Engaging in any behavior that has been or could be enjoined pursuant to Family Code �§ 6320 (i.e. molesting, attacking, assaulting, striking, stalking, battering, threatening, harassing, contacting, telephoning, destroying personal property)

Evidence of these allegations must offer "reasonable proof" to the judicial officer to issue a temporary restraining order.

Available Orders for a Temporary Restraining Order

Depending on the evidence offered and allegations made to the court the judicial officer may issue orders from "kick-out" orders to temporary custody and visitation to specific stay-away and conduct orders.

Custody and visitation - the court will consider whether the best interest of the child requires supervised visitation, or a suspension or denial of visitation altogether. The court frequently considers it the lesser of two evils to deny visitation pending a determination of the facts in the domestic violence case.

The temporary restraining order (granted ex parte) must be served on the restrained party 5 to 15 days prior to the noticed hearing (depending on whether the restrained party was present at the ex parte). The restrained party will then have an opportunity to file a response with the court and obtain legal counsel for the noticed court hearing (order to show cause).

Permanent Restraining Order

Order to Show Cause

The court may listen to testimony or may make a determination strictly on the paperwork filed with the court. There is no requirement that the respondent be present for the order to issue or not issue, however, the requesting party must be ready to proceed on the date of the noticed hearing.

The court may then make an order for a permanent restraining order if the judicial officer finds:

1. reasonable grounds to believe there is an immediate and present danger; and
2. an order is necessary to prevent the occurrence or reoccurrence of domestic violence

It is at this hearing that the restrained party may present evidence contrary to the allegations made in the protected party's initial request and may provide their own testimony or ask that the court hear testimony and review evidence from other sources. It is also at this hearing that the court will make a final determination as to the validity of the abuse allegations. If a protective order is issued it is called a "permanent restraining order" and can last up to 5 years.

Available Orders for a Permanent Restraining Order

In addition to the orders available for a temporary restraining order the court may further order child support, spousal support, restitution for lost earnings and out of pocket expenses, attorney's fees, participation in a batterer's program

False Allegations

False allegations of domestic violence do as much harm as acts of domestic violence. If you have been falsely accused of abuse it is important that you contact an attorney immediately to safeguard your rights. Once a finding of abuse is made by the court the restrained party is prejudiced as to future child custody and visitation orders as it creates a presumption that the restrained party should be denied legal custody and be limited to supervised visitation.

Furthermore, there are remedies available to those who are falsely accused including fines and sanctions against the requesting party.

The cornerstone of my practice is my dedication to protecting my clients both in situations of abuse and false allegations. False allegations can carry just as many long-term consequences as abuse and should not be taken lightly. The proliferation in recent years of false allegations of abuse as a tool to gain a legal advantage can result in a tragic miscarriage of justice without aggressive legal representation. I have been effective in preventing restraining orders where they were not warranted and understands what is at stake. Do not risk your future or you kids on an attorney who isn't prepared to fight for you. Contact The Law Office of Erica C. Affinito today for a free initial consultation.