Crimes involving domestic violence, including spousal abuse and battery, are major sources of arrests in California. In addition to criminal penalties, domestic violence arrests and convictions play a significant role in the family law context, affecting divorce, child custody, visitation arrangements, support, and residence issues. There are numerous specific laws defining domestic violence, victims of domestic violence, and procedures for dealing with domestic violence in both the Family Code and Penal Code.
In California, domestic violence is abuse committed against a party with whom you have a familial or intimate relationship. The Family Code defines specific persons against whom domestic violence can be committed:
- A spouse or former spouse;
- A cohabitant or former cohabitant;
- A person with whom the accused abuser has had a child;
- A person with whom the accused abuser is having or has had a dating or engagement relationship;
- A child of either party; or
- A grandparent, parent, child, grandchild, brother, or sister, or a spouse’s grandparent, parent, child, grandchild, brother, or sister.
Abuse is defined as:
- Intentionally or recklessly causing bodily injury;
- Placing another person in fear of immediate serious bodily injury;
- Sexual assault; and
- Engaging in behavior that is preventable by a domestic violence restraining order issued under the Family Code (explained in more detail below), including attacking, stalking, threatening, and harassing.
Domestic Violence Restraining Order
The Family Code allows a court to issue a specific type of restraining order in the domestic violence context, and it may do so ex parte, meaning without notice or a prior opportunity to contest the order. Specific types of behavior this restraining order may prevent include: molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, making threatening or obscene phone calls, destroying personal property, and contacting, coming within a specified distance of, or disturbing the peace of the other party and of other named family or household members.
A domestic violence restraining order can also require an alleged abuser to move out of the home where his or her family resides. A court may also prohibit any other specific behavior that the court feels is necessary to effectuate the domestic violence order, and may also make child custody and child support determinations.
If you have been served with a domestic violence restraining order or been arrested for violating one, it is important to have experienced legal counsel to defend your rights. The intentional violation of a domestic violence restraining order is a misdemeanor that can result in fines and jail time. Even accidental violations can have a negative impact on your parental rights.
Civil Harassment Orders
Civil harassment orders are similar to domestic violence restraining orders, but apply in a broader context because the order can be issued to protect anyone (and other members of his or her family or household) from harassment, stalking, physical violence, threats of physical violence, or sexual assault. A civil harassment order can also prohibit a person from possessing a gun.
A civil harassment order can include a request for a temporary restraining order which a court may issue within 24 hours without prior notice or an opportunity to contest the order. If the court issues a temporary restraining order, the court will also set a hearing to determine whether to issue a permanent order. Prior to this hearing the alleged harasser will have an opportunity to submit papers opposing the order, including any relevant evidence, and at the hearing, he or she will have an opportunity to be heard by the court.
If you have been served with a civil harassment order or temporary restraining order, it is important to contact experienced legal counsel as soon as possible.