Effects of a Domestic Violence Restraining Order (DVRO) on the restrained party
Updated: Sep 29, 2022
The worst mistake a party to an action can do is appear at a hearing unprepared. If there is anything we can recommend in the legal field is to always, at a minimum, seek a legal consultation with an attorney before appearing in court for a legal matter. We have had the unfortunate chore of explaining to individuals of the impact of a permanent Domestic Violence Restraining Order (DVRO) after the hearing. I usually end the consult by saying “I wish you came in to see us before the hearing”.
Be that as it may, if you have a pending DVRO Hearing in Family Court, you should know the law and possible implications of the court order.
If you are named as the Respondent or the restrained party of a DVRO issued by a judge in California, you must adhere to its terms, and you must attend the hearing that is scheduled when a DVRO is issued.
Under California Family Code Section 6218, “Protective order” means an order that includes any of the following restraining orders, whether issued ex parte, after notice and hearing, or in a judgment:
(a) An order described in Section 6320 enjoining specific acts of abuse.
(b) An order described in Section 6321 excluding a person from a dwelling.
(c) An order described in Section 6322 enjoining other specified behavior.
Keep in mind that a Temporary Domestic Violence Restraining Order is not a final order and is usually ordered during an ex parte. Once the court has had a hearing with the judge and both sides have argued, then a final order will be made. Typically, a permanent DVRO will last between 1 to 5 years. There are legal strategies to help overcome a request for a permanent restraining order. However, if one is granted, the following ramifications can affect your life,
If you are a parent and the court finds against you for domestic violence, you should be aware of Family Code 3044. Under the special law, the judge can only give custody to the person who has a domestic violence conviction/finding if the judge believes that it is in the child’s best interest to do so. There are several factors the judge must consider when making this decision.
Family Code 3044: (a) Upon a finding by the court that a party seeking custody of a child has perpetrated domestic violence within the previous five years against the other party seeking custody of the child, or against the child or the child’s siblings, or against any person in subparagraph (C) of paragraph (1) of subdivision (b) of Section 3011 with whom the party has a relationship, there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interests of the child, pursuant to Sections 3011 and 3020. This presumption may only be rebutted by a preponderance of the evidence.
It may come as no surprise that a majority of Domestic Violence cases lead to dissolution of marriage (divorce). A finding of domestic violence may have an effect on spousal support (sometime referred to alimony) as well.
If there is a criminal conviction of spousal abuse pursuant to Section 1203.097 of the Penal Code, Family Code 4325 (a)(1) states: “An award of spousal support to the convicted spouse from the injured spouse is prohibited.”
The court may order attorney's fees to the injured spouse in a dissolution and compensate the injured spouse from community property under family code 4325.
All family law DVROs are entered into the CLETS. CLETS is the California Law Enforcement Telecommunications System (CLETS) Message Management System.
CLETS is the computer network that connects public safety agencies across the state to criminal histories, driver records, and other databases. CLETS provides law enforcement and criminal justice agencies access to various data bases and the ability to transmit and receive point-to-point administrative messages to other agencies within California or via the National Law Enforcement Telecommunications System (NLETS) to other states and Canada.
Broadcast messages can be transmitted intrastate to participating agencies in the Group Bulletin Network and to regions nationwide via NLETS. CLETS has direct interface with the FBI-NCIC, NLETS, DMV, Oregon and Nevada. The state provides the computer hardware, switching center personnel, administrative personnel, and the circuitry to one point in each county.
Simply put, you are now in a database that allows multiple agencies see that you have a violation. This segues into the next concern, which is the ability to own and possess firearms.
Under California Family Code § 6389 (2017) (a) A person subject to a protective order, as defined in Section 6218, shall not own, possess, purchase, or receive a firearm or ammunition while that protective order is in effect. If you hare the restrained party, even in a temporary restraining order, you must surrender your firearms.
This can be especially detrimental to those who carry firearms at work. A special hearing can be set for permission to continue to carry at work so as to not lose employment, but there is no guarantee of the outcome.
Lastly, there can be an immigration concern for a restrained party. Family law judges, deputies, clerks, and staff do not work with Immigration Customs Enforcement (ICE). Also, Family law legal forms do not inquire into a person's immigration status.
However, DVRO court hearings are recorded by a stenographer and parties are under oath. Be aware, statements made in court or on legal forms in domestic violence restraining order cases may be used against a defendant in criminal or immigration court. Non-U.S. citizens filing a request for, or a responding to, a domestic violence restraining order, should speak to a family law lawyer familiar with criminal defense law and immigration law without delay.
According the immigration website, “The United States may deport foreign nationals who participate in criminal acts, are a threat to public safety, or violate their visa.” https://www.usa.gov/deportation#item-34837
Contact Patrick B. Long today at 619-855-5155 We have experience and knowledge that will help you through this difficult time.