Family Law and Spousal Abuse Lawyer



       DOMESTIC VIOLENCE FAQ

1. What is abuse?
2. Who is protected?
3. What ex parte orders are available?
4. What orders may the court make?
5. "Kick out" or dwelling exclusion order?
6.  Child Custody and Visitation Orders
7.  Child Support Orders
8.  Spousal Support Orders
9.  Restitution for Lost Earnings and Out-of-Pocket Expenses
10.Participation in Batterers Program
11.Attorney Fee and Costs Orders
12.Mutual Restraining Orders
13.Firearm Restrictions in Orders
14.How long do restraining orders last?
15.What evidence shall I bring to court?
16.Request a Statement of decision



1. What is abuse?

Fam C §6203 defines abuse as:

•        Intentionally or recklessly to cause or attempt to cause bodily injury;

•        Sexual assault;

•        To place a person in reasonable apprehension of imminent serious bodily injury to that person or
to another; or

•        To engage in any behavior that has been or could be enjoined under Fam C §6320.

Fam C §§6320  empowers the court to enjoin the following personal misconduct
Molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning,
including, but not limited to, annoying telephone calls as described in Pen C §653(m), destroying
personal property, contacting, either directly or indirectly, by mail or otherwise, coming within a specified
distance of, or disturbing the peace of the other party, and, in the discretion of the court, on a showing of
good cause, of other named family or household members.

Abuse is thus very broadly defined. In an extreme case, Marriage of Nadkarni (2009) 173 Cal. App. 4th
1483, the Court analyzed the meaning of “disturbing the peace,” finding that emails that disturbed the
regular calm of a person presented a prima facie case for domestic violence.   In another, S.M. v. E.P.
(2010) 184 Cal. App. 4th 1249, the Court held that badgering, short of threats, was not domestic violence


2. Who is protected?

Fam C §6211 provides that domestic violence is abuse perpetrated against any of the following persons:

•        A spouse or former spouse;

•        A cohabitant or former cohabitant, as defined in Fam C §6209;

•        A person with whom the respondent is having or has had a dating or engagement relationship;

•        A person with whom the respondent has had a child, if the presumption applies that the male
parent is the father of the child of the female parent under the Uniform Parentage Act (UPA) (Fam C
§§7600-7730);

•        A child of a party or a child who is the subject of an action under the UPA, if the presumption
applies that the male parent is the father of the child to be protected; or

•        Any other person related by consanguinity or affinity within the second degree.

To prove that there is an ongoing or previous "dating or engagement relationship," the petitioner must
show "frequent, intimate associations primarily characterized by the expectation of affection or sexual
involvement independent of financial considerations." Fam C §6210.

If you are not with the Fam C §6211 definition of a protected person you will have to bring an action for
civil harassment.


3. What ex parte orders are available?

A court may issue ex parte protective orders under Fam C §§6320-6327 to:
•        Enjoin personal conduct such as molesting, attacking, assaulting (generally or sexually), striking,
stalking, battering, threatening, harassing, contacting, or telephoning a person, or destroying personal
property, or coming within a certain distance of a person, disturbing the peace of a person, and, in the
court's discretion if good cause is shown, of other named family or household members (Fam C §6320
(a));

•        Grant to the petitioner, on a showing of good cause, the exclusive care, possession, or control of
any animal "owned, possessed, leased, kept, or held" by the petitioner or respondent (or by a minor child
who resides in the residence or household of either the petitioner or respondent) and order the
respondent to stay away from the animal and not take, transfer, encumber, conceal, molest, attack,
strike, threaten, harm, or otherwise dispose of the animal (Fam C §6320(b));

•        Exclude a party from the family dwelling, the dwelling of the other party, the common dwelling of
both parties, or the dwelling of the person who has care, custody, and control of a child to be protected
from domestic violence; these orders may be made for the period of time and on the conditions the court
determines, regardless of which party holds legal or equitable title or is the lessee of the dwelling (Fam C
§6321(a); see §2.12);

•        Enjoin specific conduct to effect an order under Fam C §6320 or §6321 (Fam C §6322);

•        Prohibit disclosure of the address or other identifying information of a party, child, parent, guardian
or other caretaker of a child (Fam C §6322.5);

•        Determine the temporary custody and visitation of a minor child (Fam C §6323; see §2.13);

•        Determine the temporary use, possession, and control of real or personal property of the parties
and the payment of any liens or encumbrances coming due while the order is in effect (Fam C §6324;
see §2.14); and

•        Restrain a married person (or registered domestic partner) from specific acts in relation to
community, quasi-community, and separate property, as described in Fam C §2045 (Fam C §6325; see
§2.14).


4. What orders may the court make?


5. "Kick out" or dwelling exclusion order?

A dwelling exclusion is often called a "kick out" or "exclusive use of home"order. The Court must find all of
the following (Fam C §6321(b)(1)-(3)):

•        Facts sufficient for the court to ascertain that the party who will stay in the dwelling has a right
under color of law to possession of the premises;

•        That the party to be excluded has assaulted or threatens to assault the other party or any other
person under the care, custody, and control of the other party, or any minor child of the parties or of the
other party; and

•        That physical or emotional harm would otherwise result to the other party, to any person under the
care, custody, and control of the other party, or to any minor child of the parties or of the other party.


6.  Child Custody and Visitation Orders

When a party requests custody or visitation and has not established a parent-and-child relationship
under Fam C §6323(a)(2)(B), but has taken steps to do so under the Uniform Parentage Act (UPA) (Fam
C §§7600-7730), the court may make appropriate custody and visitation orders under the UPA. Fam C
§6346.


7.  Child Support Orders

If the parties are married to each other (or are registered domestic partners) and no other child support
order exists, or if there is a presumption under Fam C §7611 that the respondent is the natural father of
a minor child and the child is in the custody of the petitioner, the court may order a party to pay child
support if the order would otherwise be authorized in an action brought under Fam C §§3500-5610 or
the UPA. Fam C §6341(a).


8.  Spousal Support Orders

If the parties are married to each other (or are registered domestic partners) and no spousal support
order exists, the court may order the respondent to pay spousal support in an amount that would
otherwise be authorized in an action under Fam C §§3500-3830 or Fam C §§4300-4360.


9.  Restitution for Lost Earnings and Out-of-Pocket Expenses

After notice and a hearing, a court may order the respondent to pay restitution for certain expenses and
losses. These include orders that (Fam C §6342(a)(1), (3)):

•        Restitution be paid to the petitioner for loss of earnings and out-of-pocket expenses, including, but
not limited to, expenses for medical care and temporary housing incurred as a direct result of the abuse
inflicted by the respondent or any actual physical injuries sustained from the abuse; and

•        Restitution be paid by the respondent to any public or private agency for the reasonable cost of
providing services to the petitioner required as a direct result of the abuse inflicted by the respondent or
any actual injuries sustained from that abuse.


10.  Participation in Batterers Program

A court may order a party restrained under the DVPA to participate in a batterer's program approved by
the probation department, as provided in Pen C §1203.097.Fam C §6343(a). In consultation with local
domestic violence shelters and programs, the courts are required to develop a resource list of referrals
to appropriate community domestic violence programs and services to be provided to each applicant for
an order under this section. Fam C §6343(b).


11.  Attorney Fee and Costs Orders

The court may issue an order for the payment of attorney fees and costs of the prevailing party. Fam C
§6344(a).  This is within the court's discretion.

However, when the petitioner prevails and cannot afford to pay for the attorney fees and costs, the court
must, if appropriate based on the parties' respective abilities to pay, order the respondent to pay
petitioner's attorney fees and costs for commencing and maintaining the proceeding. The court must
make its determination based on the respective incomes and needs of the parties, and any factors
affecting the parties' respective abilities to pay. Fam C §6344(b)

There is a strong argument that as a statutory rule of construction, Fam C §6344(b) pre-empts the
Court's inherant power to award fees under FC section 2030 based on need and ability.  In other words if
a spouse within a dissolution proceeding applies for a DVPA restraining order and loses, she is not the
prevailing party, and is not entitled to any attorney fees in relation to the DVPA application. Fam. C
section 2030 only applies to "a proceeding for dissolution of marriage, nullity of marriage, or legal
separation of the parties, and in any proceeding subsequent to entry of a related judgment."  The
Commentary to FC 6200 states that "these orders may be issued in a proceeding for dissolution…"  


12.   Mutual Restraining Orders

Courts are limited by statute in issuing restraining orders against both parties at the same time. To issue
a mutual restraining order enjoining the parties from acts of abuse defined in Fam C §6320, (1) both
parties must personally appear and each must present written evidence of abuse or domestic violence,
and (2) the court must make detailed findings of fact indicating that both parties acted primarily as
aggressors and that neither party acted primarily in self-defense. Fam C §6305.


13.   Firearm Restrictions in Orders

Any person who is subject to a protective order (see Fam C §6218) must not own, possess, purchase, or
receive a firearm while that protective order is in effect. Fam C §6389(a).


14. How long do restraining orders last?

A court generally issues protective orders that remain in effect for at least 3 years. The court may,
however, issue an order that will remain effective for as long as 5 years. Fam C §6345(a). If no expiration
date is stated on the order, the order will expire 3 years from the date of issuance. Fam C §6345(c). At
the request of a party, a court may renew a protective order, either for 5 years or permanently, without a
showing of further abuse since the issuance of the original order. Fam C §6345(a). The court must find
by a preponderance of the evidence that the protected party entertains a "reasonable apprehension" of
future abuse. Ritchie v Konrad (2004) 115 CA4th 1275, 1290, 10 CR3d 387.


15. What evidence shall I bring to court?

•        Testimony of a witnesses;
•        Clothing that was ripped;
•        Photographs of bruises, cuts, or other injuries inflicted;
•        Copies of threatening letters or emails from respondent;
•        Medical records documenting domestic violence; or
•        Police reports.

Sometimes people make the mistake of not adequately preparing for the hearing. It is very difficult and
expensive to appeal a decision once it is made. If someone is filing a restraining order against you, it is a
good idea to seek legal representation. A DVPA order may have far reaching consequences. You may
lose your job, if you work in certain occupations, or may not be able to apply for certain licenses. It can
be trying for even the most experienced attorney to gather evidence in the short periods of time
necessary for the hearing. You should subpoena any third party witnesses to the domestic violence as
soon as possible, especially police officers. If the police officers do not bring evidence that you subpoena
to the hearing, it may be necessary to ask the court to continue the hearing and re-issue the TRO.


16. Request a Statement of decision.

Before the court issues its ruling, request a statement of decision. CCP §632; Cal Rules of Ct 3.1590.
This may provide a valuable basis for appeal.



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