Domestic violence is spousal abuse, partner abuse, and child abuse. A person may obtain a Domestic Violence Restraining Order in Family Court in San Diego when he or she is the victim of physical, mental or emotional abuse by their intimate partner, spouse, parent, child or sibling. The minor children of the relationship or minor children of either party may also be protected by a Domestic Violence Restraining Order issued to protect a parent who is a victim.
Domestic Violence or Domestic Abuse is defined in the Family Code, and Family Code section 6203 states that “abuse” means any of the following:
- To intentionally or recklessly cause or attempt to cause bodily injury.
- Sexual assault.
- To place a person in reasonable fear of imminent serious bodily injury to that person or to another.
The court may issue an emergency order preventing any of the following acts per Family Code section 6320:
- Molesting
- Attacking
- Striking
- Stalking
- Threatening
- Assaulting
- Battering
- Harassing
- Telephoning (including making annoying telephone calls)
- Destroying the personal property of another
- Disturbing the peace of another
The court may issue an order of protection for the abused party and the court may include protection for minor children of the victim.
Victims in need of protection from the abuse of a partner, spouse or, if you are a minor, from a parent, guardian or related household member, should seek protection from the police and other community resources and obtain a restraining order.
The Family Court reviews petitions for restraining orders 5 days per week. A may be granted on the day it is filed. There is no hearing necessary for an order of protection to be issued if the court finds that the person seeking protection was placed in reasonable fear of imminent bodily injury to him or herself of that of another person. The order of protection will be issued for a period of up 21 days, after which time there will be a hearing to address the allegations of abuse with a judge. At the hearing a judge may issue a restraining order for up to five years.
The burden of proof for domestic violence restraining orders in Family Court is “ preponderance of the evidence,” which means that it must be found to be more likely than not that the accused caused the victim to fear imminent bodily harm. The legal standard for DVTROs is substantially lower than the burden of proof for a criminal cases and civil harassment restraining orders.
There are significant legal and personal consequences to a person found to have abused a spouse, partner or child. For example, a person against whom a domestic violence restraining order has been issued is required to relinquish all firearms and this may have long-term consequences for people who work in law enforcement and are required to carry a weapon. Further, when a restraining order is issued, a parent may be denied legal and physical custody of a child. Family Code section 3044 is implicated when a DVTRO is issued against a parent. This code section states that when a DVTRO has been issued in the last five years, there is a rebuttable presumption that an award of legal or physical custody of a child would be detrimental to a child.
