Family Law

Divorce

Overview of Divorces in California

There are different types of cases that can be filed with the court to terminate the status of a marriage, including dissolution (also known as divorce), legal separation and nullity of marriage. A divorce ends the marriage of the spouses and resolves issues between them including, but not limited to, child custody and visitation, property characterization and division, spousal support and child support.

Almost all divorce proceedings require the parties to attend a multitude of hearings relating to the divorce. These include status conferences, case management conferences, and mandatory settlement conferences. Every divorce is unique and presents a host of emotional and financial pressures. Our knowledgeable and experienced attorneys will help to identify the issues surrounding your divorce, analyze and clarify the options available to you and work with you to get the best possible outcome.

Grounds for Divorce in California

It is not necessary for both spouses to agree to end the marriage. Either spouse can decide to end the marriage under California law. There is no “guilty” or “non-guilty” person from the court’s point of view. This concept of a “no-fault divorce” which was developed in California means that if a married person wishes to end the marriage, he or she can do so, even if the other spouse disagrees or refuses to participate in the case. A divorce can be granted if the court finds “irreconcilable differences” that have caused an irrevocable breakdown of the marriage or if the court makes a finding of incurable insanity.

Getting a Divorce Case Started

Every divorce case begins with the filing of a petition with the court. The person who files the petition and thus starts the divorce process is called the “petitioner” the other party is called the “respondent”. The petitioner needs to be sure that they start their case in the correct state, county, and court. According to California law, to get divorced in California, the petitioner must have resided in the county where the case is filed for at least the last three months and a resident of the state of California for at least the last six months.

The divorce process will take at least six months from the date the petitioner files the petition. The case can take longer but it cannot be faster than the six months. This is a mandatory waiting period required by California law and no couple can be divorced faster than six months due to public policy considerations.

How the case is handled after the petition is filed depends on the actions of the respondent. The respondent can (1) fail to file a response to the petition; (2) cooperate to settle the case by way of agreement; or (3) file a response to the petition and contest any of the issues in the case which were raised in the petition.

Therefore, depending on the respondent’s actions in the case, there are three ways to finalize the divorce:

(1) Default Divorce: The respondent in the case fails to timely file a response to the petition for divorce. In such a case the respondent is considered in “default” and the matter proceeds without the respondent’s participation.

(2) Uncontested Divorce: A case is “uncontested” when the parties work together to settle the issues by way of a written agreement. This can occur in cases where the respondent initially defaults or where the respondent files a response and the parties later decide to resolve their issues amicably and settle the case. If the parties meet certain statutory requirements, they may be able to proceed by way of a “summary dissolution”, which is outlined below.

(3) Contested Divorce: A case is “contested” when a response to the petition is filed, the parties are unable to agree on the issues in dispute, and the court must resolve them for the parties in a trial.

Stages in a Divorce Case

Getting Temporary Orders from the Court

Often times the parties need the court’s immediate assistance and cannot wait until the divorce is finalized, which takes six months or longer. Prior to a final judgment or resolution of the divorce case, either spouse may request the court make pendent lite (aka “temporary”) orders by filing a request for order. Either party can obtain temporary orders relating to child support, spousal support, child custody, and visitation. Temporary orders may remain in effect until the time of trial, written settlement by the parties, or further court order.

Disclosure & Discovery

Each party is required under California law to accurately disclose information relating to their financial circumstances. This is done by completing financial disclosure documents such as a schedule of assets and debts and income and expense declaration. This process is often referred to as the “preliminary declarations of disclosure.”

It is the policy of the state of California to insure a proper division of community property and to insure that child and spousal support are fair and equitable. Our experienced attorneys will prepare the required financial disclosures for you and carefully and meticulously review the disclosures coming from the other party.

In addition to the preliminary declarations of disclosure, the parties have a statutory right under California law to request certain information and documents from the other party to assess the merits of the case, to prepare for settlement negotiations, and, if necessary, to prepare for trial. This exchange of information and documents is called “discovery.” Discovery is often the most important stage in a divorce case because the information and documents you provide, or the other party produces, may become part of the evidence the court considers at any hearings or at the trial in your case.

The attorneys at Christmann & McConnell are experienced in all aspects of the discovery process. Our attorneys will work with you to efficiently and effectively get through this complex process, and will help protect your interests by working to obtain necessary discovery from the other side, and, if necessary, from a third person.

Finalizing the Divorce

There are three general ways a divorce can be finalized: (1) Default judgment; (2) Agreement by the parties; or (3) Trial. If a party fails to participate in the case, the other party may be eligible to request a default judgment be entered against the non-participating party.
If both parties participate in the case, it ends when the parties either reach an agreement or there is a trial. When you and your spouse settle the case by way of an agreement, our attorneys will prepare an agreement known as a marital settlement agreement. This agreement resolves all of the issues in your case. Generally these issues include, but are not limited to, child custody, visitation, child support, spousal support, division of property, division of debts, and attorney fees. The agreement is filed with the court and incorporated into the final divorce judgment.

When the parties cannot come to an agreement, the case will conclude following a trial. It is important to note that unlike other civil or criminal matters, there are no jury trials in family court. There is only one trier of fact, which is the judge or a commissioner. Our attorneys can help you prepare for trial and effectively present evidence to the court.

Regardless of how you finish your case, be aware that your divorce will not be complete until you have a judgment signed by the judge.

Summary Dissolution

If certain statutory requirements are met, there is a quick, easy way to get divorced in California called “summary dissolution.” Not everyone meets the requirements to obtain a summary dissolution.

Do You Qualify for a Summary Dissolution?

To qualify for a summary dissolution of your marriage you must meet ALL of the following requirements:

• Have been married for less than 5 years (from the date you got married to the date you separated);
• Have no children together born or adopted before or during the marriage (and you are not expecting a new child now);
• Do not own any part of land or buildings (called “real property”);
• Do not rent any land or buildings (except for where you now live, as long as you do not have a 1-year lease or option to buy);
• Do not owe more than $6,000 for debts acquired during the marriage (called “community obligations”);
  • Car loans are not considered.
• Have less than $47,000 worth of property acquired during the marriage (called “community property”);
  • Cars not considered.
• Do not have separate property worth more than $47,000;
  • Cars not considered.
• Agree that neither spouse will ever get spousal support; AND
• Have signed an agreement that divides the parties’ property (including cars) and debts.

If you or your spouse is considering a divorce please contact one of our attorneys to set up a free consultation at (619) 325-0283, or send us an e-mail at info@cmlawsandiego.com.

Child Custody

Initiating a Court Proceeding

Before a court can make a determination regarding custody or visitation of minor children, there must be an underlying action in the proper court. This is generally a proceeding for divorce, legal separation, annulment, or a petition for custody and support. However, issues relating to custody and visitation can also come up in guardianship proceedings, dependency court, and other similar matters.

In regard to custody/visitation, it is ideal for the parents to mutually agree to a parenting plan (aka a time-share plan or “stipulation”). Here, parents agree to share and divide their parenting responsibilities including both custody and visitation of children.

If the parents cannot reach an agreement, the judge will refer the case to a mediator who will assist in the decision making process. If the parents agree to a parenting plan (before or after mediation), this plan can be submitted to the judge for approval. The judge makes the final decision but usually will approve the arrangement both parents agree upon.

If mediation is unsuccessful and the parents cannot reach an agreement, the final determination will be made by the judge in a court hearing. The judge may also appoint an evaluator to recommend a parenting plan. A parent can ask for an evaluation, but the request may or may not be granted.

Custody and Visitation Basics

Custody

Child custody refers to the rights and responsibilities between parents for taking care of their children. There is a distinction between legal and physical custody. “Legal custody” refers to the right and responsibility to make decisions relating to the child’s education, health, and general welfare. This is a broad right construed by the court to include most significant decisions in the child’s life. On the other hand, “Physical Custody” refers to where the child will reside, and how much time they spend with each respective parent.

Custody orders can be “joint” or “sole”. In a joint legal custody order, both parents share the right and responsibility to make the important decisions in the child’s life. If parents share joint physical custody the child will live with both parents. For example, the child will live one week with the mother, then the following week with the father. Joint physical custody/visitation orders are case specific and the parties, and or the court have the ability to tailor each order to each family needs.

In less frequent instances a single parent can be awarded “sole legal custody”. If a parent has sole legal custody, then they have the exclusive right to make important decisions in the child’s life. Similarly, if a parent has sole physical custody, the child will primarily reside with that parent while the other parent will be granted a visitation schedule if appropriate under the circumstances.

Visitation

Visitation refers to how each parent will spend time with the children. The court will grant reasonable visitation rights to a parent who has the children less than half of the time. However, there are situations where a court may restrict visitation rights. A court may order supervised visitation if the children’s safety and well-being require that visits with the other parent be supervised by another adult, a professional agency, or a licensed visitation examiner. If the visitation would be physically or emotionally harmful to the children, then the court may refuse to grant any visitation. In these cases, it is not in the best interest of the children for a particular parent to have any contact with the children.

The law relating to visitation plans is open to broad interpretation. As every family is different and unique, each custody and visitation order (whether by agreement of the parties or by a Judges order) has to be tailored specifically to each case. Regardless of what plan is agreed upon, it helps the parents and children to have detailed visitation plans to prevent conflicts and confusion.

Factors in Determining Custody and Visitation

Under California law, the judge must award custody and visitation according to what is in the “best interest of the child.” Under this standard there are a number of considerations the courts have used to determine what is best for the child. While this is not an exhaustive list, these factors are frequently used: (1) abuse of alcohol and/or drugs, (2) child’s preference, (3) parent’s general conduct, (4) finances, (5) change in the child’s residence, (6) history of domestic violence, (7) expert recommendations, (8) past criminal activity, (9) religion, and (10) work related issues. Although all of these considerations play a factor in the judge’s decision, none are determining factors.

Contested custody and visitation cases can become quite complicated. If your case is “contested” by the other parent; meaning an agreement cannot be reached between you and the other party, you should consider consulting a lawyer. Our attorneys will help advise you the best course of action to get the best results possible. Please contact our office for a free consultation at (619) 325-0283, or e-mail our office at info@cmlawsandiego.com.

Child Support

All minor children of the parents whether natural or adopted, or born during marriage or out of wedlock are owed a statutory duty of support under California law. The obligation exists regardless of whether there was ever a marriage.

Each parent is equally responsible for providing for the financial needs of his or her child. But the court cannot enforce this obligation until it makes an order for support. Child support payments are usually made until children turn 18 (or 19 if they are still in high school full time, living at home, and cannot support themselves). Child support can also be ordered as part of a case filed by the local child support agency (LCSA), which is the local government agency located in each county that provides services to establish parentage and establish and enforce child support orders. In California this agency is the Department of Child Support Services (“DCSS”). The court may make a child support order when the parties get a divorce, legal separation, annulment, a paternity action, or where one party obtains a domestic violence restraining order.

All California courts must adhere to the “statewide uniform child support guideline.” These guidelines determine the amount of child support that should be paid. The guideline calculation depends on:

• How much money the parents earn or can earn;
• How much other income each parent receives;
• How many children these parents have together;
• How much time each parent spends with their children (known as “time-share”);
• The actual tax filing status of each parent;
• Support of children from other relationships;
• Health insurance expenses;
• Mandatory union dues;
• Mandatory retirement contributions;
• The cost of sharing daycare and uninsured health-care costs; and
• Other factors the court deems relevant.

The child support order may also require each parent to share the costs for child care to allow the parent to work or get training/schooling for work skills, the children’s out of pocket healthcare expenses, traveling for visitation from one parent to the other, educational needs, and other special needs.

If you need assistance with a child support order, a modification, or dealing with the Department of Child Support Services (DCSS) our lawyers are experienced in getting the best possible results, please call us to set up a free initial consultation at (619) 325-0283.

Spousal & Partner Support

A spousal support award is not mandatory in a divorce proceeding or legal separation proceedings in California. The courts have quite a bit of discretion (within statutory parameters) to deny spousal support or limit it to an amount and duration that accurately reflects the ability of both parties to provide for their own needs. When a couple legally separates or divorces, the court may order one spouse or domestic partner to pay the other a certain amount of support money each month. This is called “spousal support” for married couples, and “partner support” in domestic partnerships. It is more commonly known as “alimony.”

After you have filed your case with the court, you can ask the court to issue support to be paid while your case is ongoing. This is called a “temporary spousal support order,” or a “temporary partner support order.” The court can also issue support to be ordered once the divorce or legal separation is finalized. This “permanent” (or long-term) spousal or partner support is issued as part of the final divorce or separation judgment, or incorporated into an agreement between the parties known as a “Stipulated Judgment,” or a “Marital Settlement Agreement.”

For temporary spousal or partner support, judges in many local courts generally use a formula to calculate the amount. Courts in different counties may use slightly different factors in calculating a temporary support order. The judge will not use a formula to figure out how much spousal or partner support to order at the end of your case but will base the permanent support figure off of the statutory factors outlined in the California Family Code §4320, et seq. When the judge makes his or her final spousal or partner support order, the judge must consider a number of factors including:

• The length of the marriage or domestic partnership;
• What each person needs based on the standard of living they had during the marriage or domestic partnership;
• What each person pays or can pay (including earnings and earning capacity) to keep the standard of living they had during the marriage or domestic partnership;
• Whether having a job would make it too hard to take care of the children;
• The age and health of both people;
• Debts and property;
• Whether one spouse or domestic partner helped the other get an education, training, career, or professional license;
• Whether there was domestic violence in the marriage or domestic partnership; ;
• Whether one spouse’s, or domestic partner’s, career was affected by unemployment or by taking care of the children or home; and
• The potential tax impact of spousal support

Every case is unique; due to the factual and equitable differences in each case the court must determine what factors are used and how much weight is afforded to them. Determining the weight to be given for each of the statutory factors in a particular case in order to arrive at a support award that is “just and reasonable” under the law is a case specific analysis. As a result, the court will consider all applicable factors but the decision is ultimately up to the trial courts sound discretion. The spousal or partner support order then becomes part of your final divorce or legal separation judgment.

If you need assistance with a spousal support order, or a modification our lawyers are experienced in getting the best possible results, please call us to set up a free initial consultation at (619) 325-0283.

Modification of Orders or Judgements

Modification in General

A “final” judgment in a family law action does not necessarily mark the end of litigation between the parties. A great number of court orders or agreements are modifiable and often are modified long after a judgment is issued. Most post-divorce decree modification requests are related to child custody, child support, and spousal support.

Child Custody Modification

Child custody and visitation orders generally are modifiable throughout the child’s minority whenever the court finds a modification is “necessary or proper” in the child’s best interests. The court will use the “necessary or proper” standard throughout the pendency of a case.
A party seeking to modify a “final” or “permanent” custody order can do so only upon a showing of a significant “change of circumstances” affecting the child, and that modification would be essential to the child’s welfare. The “changed circumstances” rule is triggered only after a “final” or “permanent” custody judgment is entered.
While there is no formal definition of what constitutes a change of circumstances, some courts may consider the following a change of circumstances that may qualify for a court ordered modification (not exhaustive):

• Relocation (especially to another state);
• Loss of job or increase or decrease in earnings;
• Unsuitable living environment for children;
• Unforeseen expenses; usually medical expenses;
• Drug or alcohol use or abuse.
• Other factors the court deems appropriate.

Child Support Modification

Under “Statewide Uniform child support guideline(s)” dictated by the California Family Code §4050 et seq., child support orders are modifiable “at any time as the court deems necessary.”

As a general rule, courts will not revise a child support order unless there has been a “material change of circumstances.” This rule applies to any form of child support order–i.e., “pendente lite” (also known as temporary orders while litigation is ongoing) and “permanent” support orders issued at the conclusion of litigation.

The court does not use a rigid set of guidelines for determining whether circumstances have changed sufficiently enough to warrant a child support modification. So long as the statewide statutory support formula requirements are met the determination is made on a case-by-case basis and may rest on different factors such as (not exhaustive):

• Change in visitation time with children;
• Increased travel expenses;
• Changes in ability to pay;
• Noncustodial parents increased wealth
• Statutory “hardship expense”
• Income from third parties
• Changes in need for support (such as, increased unforeseen medical expenses for the child);

The burden of proving a case for a child support modification (e.g., usually changed circumstances) rests with the party seeking the modification. Structured fee agreements may be arranged and looked into on a case-by-case basis.

The attorneys at Christmann & McConnell will help you enforce your court orders, and collect on your family law judgment. There are a number of legal theories and tools our competent attorneys utilize in order to procure enforcement of a judgment including but not limited to; contempt, filing sanctions, wage garnishment, lien assignment, and levying on bank accounts and/or property.

Spousal/Partner Support Modification

Either spouse or partner can ask the court to modify their spousal or partner support but only where they can show that there is a need based on a “change in circumstances.” This means something significant has changed since the previous spousal or partner support order was issued.

IMPORTANT NOTE! If you are the person paying spousal or partner support, you will still owe the full amount of support in your current court order until you get the order changed, even if your situation has changed. So, for example, if you lose your job today but you do not change your spousal or partner support order until 4 months from now, you will still owe spousal or partner support from today until 4 months from now, even though you were not working. Also, if you owe that amount but are unable to pay it, you will owe interest (at the legal rate of 10% per year) on any unpaid balance. For this particular reason it is important for you to have a knowledgeable attorney who can help you modify your support order. Our attorneys are experienced in getting the best results possible as quickly as possible, please call us to set up a free initial consultation at (619) 325-0283.

Terminating Spousal/Partner Support

Spousal or partner support can be terminated a number of different ways. The court can issue a judgment wherein it terminates the support obligation. Support can also be terminated where:

• One of the spouses/partners die, or remarries/registers a new domestic partnership; or
• For “fixed-term” orders, the support obligation terminates at the end of the period specified in the order unless the court retains jurisdiction to extend the obligation; or
• For “contingent” orders, the obligation is terminated upon the happening of the specified contingency.

Property Division

California is considered a “Community Property” state. California has complex rules regarding the division of property in divorce. Community property is defined as all property and debt that was acquired from the date of marriage until the date of separation. The community assets and/or debts will be split equally by the Superior Court in the event the parties are unable to reach an agreement.

In most divorce or legal separation cases, the court must also determine if there is any separate property that needs to be allocated to a particular party. Separate Property is defined as any property acquired before marriage, after the date of separation or property obtained during the marriage by gift, will or inheritance, and/or any property acquired with the expenditure of separate funds.

Property distribution can be one of the most contested issues in a divorce or legal separation case. California community property laws are intended to facilitate a “clean break,” for the parties where jointly owned property is eliminated and divided so each spouse can move forward independently. However, there are case specific circumstances that the court can take into consideration when dividing assets between the parties. Sentimental value for certain property and case specific family situations involving children are factors that can impact the distribution of spouse’s community property.

Our family law lawyers can assist with valuing and dividing all of your marital property and/or debt, including (but not limited to):

• Real estate (residences, investment properties, timeshares, etc.)
• Personal property (such as personal belongings, vehicles, art, jewelry, firearms, etc.);
• Family-owned businesses;
• Insurance;
• Stocks, bonds, stock options, and all types of investments;
• Retirement accounts, pensions, and IRAs;
• Debts (including mortgages, credit cards, taxes)

In more complex property dispute cases, we consult with forensic accountants to establish separate property and determine the value of a party’s assets and other investments. The attorney’s at Christmann & McConnell will prepare a breakdown of your property that will allow you to consider various settlement possibilities and make informed decisions about your financial future. Please call our office today to set up a free initial consultation at (619) 325-0283.

Premarital and Postmarital Agreements

Basics

Marital agreements fall under two main categories, premartial agreements and postmartial agreements. A premartial agreement is entered into before the parties enter into marriage and becomes effective on the date of marriage. A postmartial agreement is entered into after the marriage as already begun. Although the timing is different, both of these agreements essentially affect the same thing: the contractual recitation of the rights and remedies of each party in regard to a marital relationship.

Content of the Agreement

Generally, any financial or property issue can be dealt with in a premarital agreement. Issues relating to children, including child support and custody are not permitted based on public policy. Similarly, courts generally do not allow a waiver of spousal support. However, there are limited circumstances where courts will allow such a waiver. For example, if the party whose receipt of spousal support is limited or waived had independent counsel before entering into the agreement.

If you need assistance or advice regarding a potential premartial agreement, or would like to discuss the drafting of a postmartial agreement, please call our office for a free initial consultation at (619) 325-0283.

Paternity

If a child is born outside of marriage, or if there is a question as to who is the father of the child born to an unmarried woman, filing a paternity action is the most common way for a parent to establish and enforce their legal right as a parent. This is true even if a parent executed a voluntary declaration of paternity at the hospital. If the parents were married when the child was born, the husband is determined to be the “presumed father” pursuant to Family Code §7611(d) having legal rights concerning the child.

A child’s paternity must be established before a parent can request child support or custody and visitation orders. The parent can ask the judge for child support or custody and visitation as part of a case that establishes the paternity of a child, or through a child support case.

How to Establish Paternity

The child, the child’s natural mother, or a presumed father can all bring an action to determine paternity. The party seeking to establish paternity must file a “petition to establish parental relationship.” In addition to an actual paternity action, there are several other ways to establish a parental relationship: voluntary declaration of paternity; parentage by estoppel; or a local child support agency can bring an action establish paternity.

If you or a loved one needs help establishing a paternity action, or would like to request a child support order please call our office at (619) 325-0283 for a free initial consultation.

Guardianship

Guardianship Basics

A guardianship proceeding is a process by which non-parents obtain custody of a child. The person appointed by the court is called the guardian, and assumes legal responsibility for the child. The appointed guardian will care for the child and make day-to-day decisions concerning the child’s well-being. A guardianship is commonly used if neither parent is able or willing to have custody, such as if both parents are deceased, or have left the child in the care and custody of a nonparent, for whatever reason.

In a guardianship, the parents of the child may still have parental rights and also maintain reasonable contact with the child. This differs from an adoption where the parent’s rights have been permanently terminated. A guardianship also differs from an adoption as the guardianship may be revoked at any time if a court deems that the guardian is no longer needed.

Establishing a Guardianship in California

A petition for appointment of a guardian may be filed in probate court by a relative or other person on behalf of the child. A guardianship case can also be requested through dependency court where appropriate, but generally is not addressed through the Family Court system. The person filing the petition is the “Petitioner.” The Petitioner must allege the facts which require the establishment of a guardianship. The most common reason a guardianship is established is when the parents are unable to care for the child due to neglect, abuse or abandonment. Courts will also establish a guardianship for other reasons such as if the child has lived in the home of someone other than the natural parents for so long that removal of the child from that home would be detrimental to the child’s wellbeing.

Upon the filing of the petition, the court will order the investigation of the proposed guardian’s home and interview the child. The proposed guardian will also be required submit to a criminal background check. A social worker will then summarize the findings in a written report. The report is then given to the court to help it determine what custody orders it should make, if any. If the court deems that a guardianship is necessary and determines who the best person to raise the child is, it will then establish a guardianship that will last until the child reaches the age of eighteen.

Duties of a Guardian

Once the guardian obtains custody, the guardian will then have all the powers and all the obligations toward the child as if the child was his/her own biological child. It will be up to the guardian to ensure the children’s health, welfare, and safety needs are met. This includes: making all educational and medical decisions for the child; providing the child with food, shelter and clothing; providing financial support for the child; and stepping into the shoes of a parent.

If you or a loved one needs help with a Guardianship case, please contact our office at (619) 325-0283 for a free initial consultation.

Adoption

In California there are a number of different types of adoptions. Christmann & McConnell handles a variety of different adoptions including but not limited to: Step-parent adoptions, private placement independent adoptions, and agency adoptions.

A step-parent adoption occurs when a party divorces and remarries, and the new spouse wants to adopt the child or children of the mother’s or father’s prior marriage. Step-parent adoptions are one of the more common types of Adoptions in California. Step-parent adoptions require the consent of the parent who is giving up their parental rights. If the other parent is not willing to give consent to the adoption, then the adopting parent must file a request with the court to terminate their parental rights before the adoption process can begin.

Figuring out which petition to terminate parental rights to file can be difficult and following the necessary procedures can be tricky without the help of a licensed attorney who has experience in this area of law.

Private placement adoptions occur where a family has chosen the particular family that will be adopting their child or children, and work together throughout the process. Whereas, agency adoptions are done through specific state run agencies who seek out family’s who are willing to adopt children currently in the foster care system.

The lawyers at Christmann & McConnell will help guide you through this complicated process and will fight for your right to be a parent. If you or someone you know has questions regarding an adoption, please call our office to set up a free initial consultation at (619) 325-0383.

Domestic Violence and Restraining Orders

Domestic Violence

You may be a victim of domestic violence if: (1) you are the victim of “abuse” AND (2) you have a “close relationship” with the abuser.

There are many different forms of “abuse.” Abuse in domestic violence does not necessarily have to be physical like hitting or pushing someone. Abuse can also be verbal, written, emotional, or psychological. California law defines “abuse” as:

• Physically hurting or trying to hurt someone, intentionally or recklessly;
• Sexual assault;
• Making someone reasonably afraid that they or someone else are about to be seriously hurt (like threats or promises to harm someone); OR
• Behavior like harassing, stalking, threatening, or hitting someone; disturbing someone’s peace; or destroying someone’s personal property.

Domestic violence in a family court setting is also limited to situations in which the person being abused and the abuser have a “close relationship.” There is a close relationship when the person being abused and the abuser are or have been in an intimate relationship (married or domestic partners, are currently dating or used to date, live or lived together, or have a child together). It is also when the victim and the abusive person are closely related by blood or by marriage. The court will also generally require that the acts of abuse/violence must have occurred within recent timeframe. If the abuser is a neighbor or other person with no relationship as described above, you must request a civil or criminal restraining order depending on the type of abuse.

Restraining Orders

A restraining order is a court order either preventing the abuser from acting in a certain way or requiring the abuser to act in a certain way (legally construed as “injunctive relief”). The court can order the restrained person to:

• Not contact or go near you, your children, other relatives, or others who live with you;
• Stay away from your home, work, or your children’s schools;
• Move out of your house;
• Not own or possess firearms;
• Follow child custody and visitation orders;
• Pay child and/or spousal support;
• Stay away from any of your pets;
• Pay certain bills or debts; and
• Release or return certain property.

A restraining order can protect not only the person applying for the restraining order but also their children, housemates, and even their pets. When a party who petitioned for, and receives a permanent restraining order, Family code §3044 will usually also have an effect on a parties custody and visitation rights. It is very important to have an attorney who is well educated and familiar with Fam. Code §3044 as the ramifications it can have on a parents custody is far reaching.

The Restraining Order Process

When you go to court to obtain a restraining order, you fill out court forms where you tell the judge everything that has happened and why you need the order. If the judge grants the order, he or she will issue a temporary restraining order initially.

Temporary Restraining Order (TRO)

A Temporary Restraining Order (also known as a “TRO”) is granted to ensure a period of separation between the parties in the event abuse or past acts of abuse have occurred. A TRO will last 21days, until the hearing where the court sets to decide whether a permanent restraining order should be issued. Even though a TRO is only “temporary,” it is still a valid, binding and enforceable court order. A temporary restraining order may be granted even though the abuser is not present in court and was not even provided notice of the hearing. The burden of proof for the person who seeks the restraining order is therefore extremely low, and are generally granted out of an abundance of caution for the protected party.

“Permanent” Restraining Order

In the event your TRO is granted, the court will set a hearing to determine if under the facts and evidence presented, if a “permanent restraining order is appropriate. A permanent restraining order lasts longer than a few weeks, and can last from one year up to five years. A permanent restraining order may only be ordered by the court after notice of the hearing and an opportunity to be heard is provided to the abuser. At the end of those five years (or whenever your order expires), you can apply to the issuing court for a renewal not later than 30 days before your restraining order is scheduled to expire so you remain protected.

Other Types of Restraining Orders

If you do not qualify for a domestic violence restraining order, there are other kinds of orders available:

• Criminal protective order (a district attorney initiates charges against the abuser);
• Civil harassment restraining order (can be used for neighbors, roommates, or more distant family members like cousins, etc.);
• Elder or dependent adult abuse restraining order (if the person being abused is 65 or older; or between 18 and 64 and a dependent adult).
• Workplace violence restraining order (filed by an employer to protect an employee from violence, stalking, or harassment by another person).

If you or a loved one is in an abusive relationship, please contact the attorney’s at Christmann & McConnell to schedule a free initial consultation.