“Problems With Current Trends In California Domestic Violence Prevention Act Restraining Orders”

Normally I write blogs with information on a specific area of California law. This blog is addressing a different issue—the current trend in California law, both by statute and by appeals court decisions, to make it easier to obtain a domestic violence restraining order, while the consequences of those restraining orders are getting more and more severe.

The purpose of these restraining orders is clear, and is spelled out by the name: they are meant to prevent domestic violence. They are issued in cases where there has been abuse, or a pattern of harassing conduct, or threats, or an incident (or incidents) of violence. Sounds simple, right? People should be protected from those things.

But before we discuss the standards a judge will use in granting or denying a domestic violence prevention act restraining order (called DVPA’s, for short) we need to discuss the consequences of such a restraining order.

First, they are public record. Anyone can look up your name and see your case. This means that they show up on a background check.
Second, many employers will not hire someone who has a DVPA against them. There are many professions (such as law enforcement or working for the state or federal government) where you can be fired for having a DVPA. Security clearances can be affected, even for civilian workers on government owned property.

Third, there are firearm restrictions. You may not own a firearm during the period of the order. An order can last from one to five years, and can be extended permanently if a judge believes it is appropriate. This means loss of job for anyone who uses a weapon in their employment, and loss of rights to own a firearm for people who own a weapon for home defense or for hunting. In addition, the rules regarding approval for firearms purchases from the federal government are constantly changing, and they have interpreted, for instance, that a misdemeanor domestic violence conviction that normally carries a 10 year gun ban instead lasts indefinitely. It is highly probable that in the future a DVPA may permanently affect the ability to purchase a weapon, even long after its expiration.

Fourth, the DVPA shows up in law enforcement data bases. This means that when you get pulled over for speeding and give your driver’s license, the office will know there is a DVPA. This can materially affect your interaction with law enforcement during that traffic stop.
Fifth, a DVPA has a material effect on custody and visitation—there is a presumption in California law that a person who has committed acts of domestic violence, which is part of the finding under the DVPA laws, is not the proper parent to have primary custody.

Can you see how this can be used for an advantage in a divorce or custody case?

The problem is, cases that are filed with true violence or harassment or threats are mixed in with many cases that are primarily being used as leverage.

Now, put into this mix the fact that DVPA filings are done ex parte—this means the paperwork with the allegations are given to a judge without a chance for the other side to respond. The allegations must be taken at face value, because there is no other side of the coin presented. Judges don’t want people hurt or harassed, so they do their best to sort out the cases where orders are needed, and they grant those orders, and deny the ones that do not appear to warrant a DVPA.

This means that the more outrageous and sometimes downright deceitful your initial allegations are, the more likely you are to get a temporary order. It often takes months for a full hearing to be had on the order and for both sides to present evidence, and in the meantime, the DVPA stays in place on a temporary basis.

Now, as to the changing standards. The general rules can be read at a previous blog, located here: http://swansonodell.sitesdev.net/2016/08/24/what-facts-do-i-need-to-prove-before-i-can-get-a-restraining-order/

In general, any behavior that is threatening, harassing, stalking, etc., can be the basis for a restraining order.
There are recent law changes and cases, however, that push the standards even lower. For instance, the new California Family Law Code Section 6203(b) states that abuse is not limited to a physical assault or injury. This rule was then extended in the case of Rodriguez v. Menjivar, 243 Cal.App.4th 816, a 2015 cases where the court found that mental abuse, and the nebulous “controlling and coercive behavior” are within the definition of abuse.

Another 2015 extension of the law occurred in the case of Altafulla v. Ervin, 238 Cal.App.4th 571, in which the court issued a five year DVPA restraining order based on a father telling his children traumatizing things about their mother. The court found that it did not even matter if the statements made were TRUE, as long as they sufficiently disturbed the mother’s emotional peace.

Now, it is clear that orders protecting victims from abusers are needed. Understanding the abuser-abused relationship has come a long way in the last 20 years, and providing protection has been a good thing.

The problem comes in with the convergence of greater ease of obtaining a DVPA restraining order and significant, sometimes life-long consequences.

Courts have long used what are called “family law stay-away orders” which are court orders that are not made under the DVPA, and which do not carry the same consequences, listed above. However, with a DVPA available so easily, more people are opting for those orders, because they are more easily enforced. Some sort of middle ground needs to be made available, perhaps in the form of a multi-level restraining order system where the judge can choose the appropriate level for the case at hand. Because as the system exists now, and where it appears to be going, there is a real advantage to getting the first punch in and getting a DVPA, even if it may not be appropriate in the end. It puts the other party on the back foot trying to defend against very serious consequences, even if the allegations are not true.

It is a system in need of a fix, but also a system that is unlikely to get one in the foreseeable future.

DISCLAIMER: All legal principles quoted are valid as of the date of writing in the State of California. However, you should NEVER base your actions on a legal article, blog, or internet story, as facts in real life are complicated. You should have your case evaluated by an attorney experienced in the area of law needed for your case. In addition, there are often exceptions and potential changes to results that occur due to facts that you may think are trivial or unimportant. This article should not be taken in any way as legal advice on your specific legal matter.

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