DV LAW IN ALAMEDA COUNTY

Legal Disclaimer: Family Violence Law Center's website provides general legal information to help people understand domestic violence, but is not a substitute for legal advice from an attorney. The information provided on this website is intended only as information and does not constitute legal advice, nor does reading, downloading or otherwise using this site create an attorney-client relationship.

COMMON LEGAL TERMS

Unless you went to law school or have worked in the legal field, you are probably unfamiliar with the legal terms that may be related to your situation. Understanding what these terms mean will help you to feel more comfortable as you work your way through the legal system.

Petition

A petition is a document filed by an individual asking the court to take some action against another individual (or sometimes against a corporation). For example, if my neighbor is harassing me, I may file a petition asking the court to order my neighbor to stop harassing me or to stay away from me.

Petitioner

The petitioner is the person or persons (party) who files a petition requesting that the court take some action against another person. For instance, when filing a restraining order the petitioner is the party who files for the restraining order.

Respondent

The respondent is the person or persons (party) against whom the petition or request for action is filed. In a restraining order case, the respondent is the person the petitioner wishes to have restrained.

Emergency Protective Order (EPO)

This is a temporary protective order lasting 5-7 days, issued by the police to a victim of domestic violence immediately after an incident has occurred. The order provides protection for the victim by requiring that the abuser stay away from the victim and his/her residence. The 5-7 day period gives the victim enough time to file a request with the court for a permanent restraining order. If you have called the police because of abuse and you are in immediate danger, ask about an Emergency Protective Order.

Criminal Stay Away/Protective Order

This is an order issued by the court in a criminal case against the perpetrator of violence, often as a part of the abuser’s probation. This order usually requires that the perpetrator have no contact with the victim. Sometimes a criminal protective order requires only that the individual not harass, threaten or hit the victim.

The length of the protection provided by the Criminal Protective Order varies widely. Criminal Protective Orders usually last only while the criminal case is active. If the prosecutor decides not to charge the crime, then the protective order is removed. Victims may not be notified when there are developments in a criminal case, and they may not know whether the Criminal Protective Order is active or not. For these reasons, it is a good idea to also request a civil restraining order, even if you are already protected by a criminal order.

Ex-parte Order

This is an order issued by the court without notice to the responding person or persons (party). These orders must be temporary in nature and typically will not last longer than 15-20 days.

Temporary Restraining Order (TRO)

This order is issued when a petition for a permanent restraining order is filed in civil (non-criminal) court. This order protects the victim while he/she is waiting for a hearing on his/her request for a permanent restraining order. It usually prohibits the respondent (restrained person) from contacting the petitioner (victim). The hearing on the permanent restraining order must be scheduled no more than 20 days after the temporary restraining order is issued. The respondent must be served with the TRO before police can enforce the order.

Restraining Order After Hearing

This is the “permanent” restraining order issued by the court against the respondent (restrained party) after a hearing in court. The court can only issue a Restraining Order After Hearing if both the petitioner and the respondent have been given notice about when and where the hearing was going to occur. The respondent will have an opportunity to defend him/herself at the hearing. However, if after being given proper notice, the respondent does not come to the hearing, the court may still issue the restraining order.

The Restraining Order After Hearing sets forth the specific restrictions ordered by the court against the respondent and can last up to three years. A victim may renew the order when it expires, if necessary.

Service

Restraining order papers must be delivered to the responding person or persons (party) giving notice that a petition has been filed with the court against him/her. These documents must contain the date and time of the hearing, a statement of the action requested, and any documents the petitioner filed with the court to support his/her position.

The delivery of these papers is called service, and it provides the responding party with proper notice of the legal action filed against him/her. If the petitioner does not properly serve the respondent, then the court CANNOT make a permanent restraining order. Also, the respondent must be served before the police can enforce a restraining order (emergency, temporary, or “permanent”).

In order for service to be satisfactory for the court:

• the papers must have been served at least 5 days before the hearing
• the papers can be delivered by any person over the age of 18 who is not named as a party in the case

The respondent does not have to accept the papers in order for the court to recognize that he/she has been served. The person who delivers the papers will sign a proof of service, which is the only documentation that the court requires.

Proof of Service

This is a document verifying that the respondent received proper service. The document requires the person who served the papers to sign under penalty of perjury that the papers were properly delivered to the respondent. The respondent does not have to accept the papers in order for the court to recognize that he/she has been served. Proof of Service documents can be obtained at your local courthouse.

back to top ^

CIVIL VS.CRIMINAL COURT

In the United States there are two types of courts that handle issues involving domestic violence: Civil Court and Criminal Court.

Civil Court

A civil court handles actions filed by an individual (or business) against another individual or business. An individual brings suit against another person or persons (party) for one of several reasons:

1. A party may bring a civil suit if he or she was injured by the other party’s violation of a civil law.
   
2. A party may bring a civil suit to prevent the other party from doing something. For instance, a restraining order prevents the restrained person from coming into contact with the person who filed the action.
   
3. A party may bring a civil suit to ask the court to characterize the legal nature of one person’s relationship to another. Divorce actions, custody action and guardianship actions are all examples of this third type of action.

The goal in civil court is provide some type of relief to the party bringing the action. The aim is not to punish the other party. So a violation of the civil law is not punishable by imprisonment. It is a civil action, in civil court, when one person (the victim) requests a civil restraining order be issued against another person (the perpetrator). However, a violation of a civil court order, such as a restraining order, is contempt of court. Contempt of court is a criminal act and so a violation of a restraining order or any other court order is punishable by imprisonment.

Criminal Court

A criminal court only handles actions brought by the state against an individual because the state believes that person has violated one or more of its criminal laws. Criminal cases ARE NOT actions taken by the victim against the perpetrator. Violations of criminal laws are punishable by imprisonment, although other punishments may be used as well.

A prosecutor or District Attorney (DA) brings criminal actions against the individual the state believes violated its criminal laws. He or she represents the state against the defendant (person who is believed to have broken the law).

Orders issued in criminal court are primarily issued to punish an individual for violating the state’s laws. These include Criminal Protective Orders and Emergency Protective Orders.

It is a violation of the California Penal Code to commit domestic violence. If the District Attorney (DA) believes there is enough evidence to prove this crime was committed, he or she will file a case against the perpetrator.

back to top ^

CIVIL RESTRAINING ORDERS

There are two types of restraining orders that may be requested in civil court: Domestic Violence Restraining Orders and Civil Harassment Orders. If you are planning to file for a restraining order you need to know which type of restraining order you should file. This is important to know because certain orders, such as custody orders, can be made with Domestic Violence Orders and not with Civil Harassment Orders.

back to top ^

DOMESTIC VIOLENCE RESTRAINING ORDERS

Printable Domestic Violence Restraining Orders

How do I know if I can get a Domestic Violence Restraining Order?

What is your relationship with the person you want to restrain?
In order to qualify for a Domestic Violence Restraining Order you must have one of the following relationships to the person you want restrained:

• Spouse or former spouse
• Person with whom you share or shared a living space
• Have or had a dating/engagement relationship
• Parents of a child
• Relative to the second degree (grandparents, but not cousins)

What is the person doing?
In order to qualify for a Domestic Violence Restraining Order the person you wish to have restrained must have committed at least one of the following acts:

• Recent physical violence (usually within the past 6 months)
• Recent threats of physical violence (past 3-6 months)
• Harassment (excessive phone calls, threatening or upsetting notes etc.)
• Recent sexual assault or molestation
• Stalking
• Verbal abuse (only where very severe)

What kind of evidence do you have?
The court cannot issue a restraining order without “reasonable proof” that the party to be restrained committed the abuse. A signed statement setting out the particular incidents of abuse and, if possible, the dates on which it occurred may be enough evidence.

However, the following items are very helpful to the court and if you have them, a copy should be attached to your statement:

• Police reports of recent incidents
• Medical/hospital records
• Photographs of injuries
• Emergency Protective Orders
• Criminal Protective Order

How will a Domestic Violence Restraining Order protect me?

Domestic Violence Orders are primarily designed to keep the restrained party away from you, but they can also provide other types of relief from abuse. Below are some of the requests you can make when filing for a Domestic Violence Restraining Order.

• Restrained person cannot contact you
• Restrained party must stay at least 100 yards away from you
• If you live with the restrained party, you can have him removed from the property (this is only effective if you have some claim to the property)
• You can request child custody and child support, and set a visitation schedule
• Restrained party may be required to attend a batterer’s treatment program
• You may get legal control of property that belongs to both of you or to you alone
• Restitution (reimbursement for costs resulting directly from injuries caused by the batterer i.e. medical bills or lost income)
• Restrained person may not possess any firearms

How do I get a Domestic Violence Restraining Order?

Obtaining a restraining order may seem intimidating, but keep in mind that there are resources available to assist you. If you qualify for our services we can help you through the restraining order process. If you do not qualify for our services there are many other programs that may be able to offer you assistance.

If you decide to apply for a restraining order on your own, below is a brief description of the process for obtaining an order.

1. Go to the Family Law Department in your local courthouse and request an application for a Domestic Violence Order.
2. Give the completed application to the Family Court.
3. Within 48 hours your Temporary Restraining Order should be ready. It will provide you with your hearing date for the permanent (3 year) restraining order.
4. Have the restrained party served with a copy of the temporary restraining order (this generally must be done at least 5 days prior to the hearing).
5. The person who serves the restrained party must fill out a Proof of Service, documenting that the restraining order was served.
6. Attend the hearing and receive a copy of the permanent (3 year) court order (Restraining Order After Hearing). Make sure to bring the completed Proof of Service to your hearing.
7. If the restrained party was not present at the hearing, you must have him/her served with the Restraining Order After Hearing.
8. Provide a copy of your restraining order and, the proof of service, to the police department in your area.
9. Keep your restraining order on you at all times.

back to top ^

CIVIL HARASSMENT ORDERS

Courts may be more hesitant to grant Civil Harassment Orders because, unlike Domestic Violence Orders, the protected party does not have to have any intimate relationship to the restrained party. However, in many respects Civil Harassment Orders are very similar to Domestic Violence Orders. This section describes how Civil Harassment Orders are different from Domestic Violence Orders.

How do I know if I can get a Civil Harassment Order?

What is your relationship with the person you want to restrain?
No specific relationship to the restrained party is required. This is the primary difference between a Civil Harassment Order and a Domestic Violence Order.

What is the person doing?
Unlike the Domestic Violence Order, a Civil Harassment Order can only be obtained if there is an actual or reasonable threat of harm. Verbal abuse—name calling—is generally not enough for a Civil Harassment Order.

What kind of evidence do you have?
The court cannot issue a restraining order without “reasonable proof” that the party to be restrained committed the abuse. A signed statement setting out the particular incidents of abuse and, if possible, the dates on which it occurred may be enough evidence.

How will a Civil Harassment Order protect me?

In general the protected party will receive an order requiring that the restrained party not contact or come within a 100 yards of them. However, other orders may be requested.

How do I get a Civil Harassment Order?

The process for obtaining a civil harassment order is identical to the process for obtaining a Domestic Violence Order, except that you need to request an application for a Civil Harassment Order. There is also often a filing fee with Civil Harassment Orders, which is waived for Domestic Violence Orders.

back to top ^

CHILD CUSTODY

Printable Child Custody & Visitation

In California, the legal system has begun to recognize domestic violence as major concern in assigning custody. If the judge finds that there has been violence by one parent against the other, the judge is required by law to make this a significant factor weighing in favor of custody to the victim.

The judge makes custody decisions with the assistance of a court-affiliated program, Family Court Services. A Family Court Services mediator speaks to both parents and if they do not agree on custody arrangements, the mediator makes recommendations to the judge concerning what custody arrangement will be in the best interest of the child.

Under California law, there are two types of custody: legal custody and physical custody:

Legal Custody - refers to the right and responsibility of the parent(s) to make decisions for the child regarding health, education, religion, etc.

Physical Custody - refers to which parent the child lives with.

Either legal or physical custody may be awarded to one parent (sole) or to both parents (joint).

back to top ^

VISITATION

If parents cannot agree on a visitation schedule for the children, the court will determine the visitation schedule. In cases where there is no domestic violence and/or the parents are able to communicate well, the court will often order "reasonable visitation" to the parent who does not have primary physical custody. In cases where domestic violence is alleged, visitation orders must be detailed and include specific times for drop-off, pick-up, and place of exchange.

California's policy is to ensure that minor children have frequent and continuing contact with both parents and to encourage parents to share the rights and responsibilities of child rearing, except when that contact would not be in the child's best interest. These are some things to keep in mind if you need to establish a visitation schedule:

• The court may order no visitation, but generally only in limited situations. It must be shown that the visitation will most likely be dangerous (because of violence, or alcohol and/or drug abuse by one parent), or detrimental (due to abuse, neglect and/or cruelty) to the child.
  
• Neither the courts nor Family Court Services will automatically consider violence against the mother as detrimental to the child.
  
• Visitation rights will not be refused just because the parents disagree or cannot be around each other.
  
• Additionally, the non-custodial parent's failure to provide support is not sufficient to deny visitation, nor is the obligation to pay support nullified by the lack of visitation.

back to top ^

FAMILY COURT SERVICES

Mediation by Family Court Services is required whenever the parents cannot agree on custody or visitation. At Family Court Services, special provisions exist for parties with a history of domestic violence. When domestic violence is alleged, the mediator must meet with the parties separately. However, the victim must request this separate appointment when she contacts Family Court Services. In addition, a battered woman may bring a support person to her mediation session. The mediator may also interview the child(ren) or other parties who may have bearing on the best interests of the child(ren).

back to top ^

FVLC Programs I How Can I get Help? I Ayuda en Español I Support FVLC I Job Openings I Contact Us I Site Map I Home

© 2003 Family Violence Law Center I email webmaster