A restraining order can:

• Order the batterer to stay a specified distance away from you.
• Order the batterer to stay away from your home, work, school, family's home, children's school, child care center, or baby sitter's home.
• Order the batterer to move out of your home, even if the batterer's name is on the lease or he or she is co-owner.
• Give you custody of your children and make visitation orders.
• Order the batterer to pay child support.
• Order the batterer not to call or write you or do so through another person.
• Divide up some of your property.
• Order the batterer to reimburse you for lost earnings

If you are married, you do NOT have to get a divorce to obtain a restraining order. In order to get a restraining order you must meet two conditions:

You and the other party must be one of the following: married, formerly married, related by blood/marriage/adoption, currently living together as "cohabitants", have formerly lived together, currently have or have had a dating relationship, or are parents in common of minor children.

The other party must have caused or attempted bodily injury or sexual assault or placed you in reasonable fear of physical or emotional harm.

Children in homes where domestic violence occurs are at risk of physical and emotional abuse. Police officers who respond to a domestic violence incident must assess your children's safety.

Domestic Violence And Custody
Under a recently enacted state law (Family Code Section 3044) the state has enacted a new policy regarding custody and domestic violence.

Under the law, if the court finds a party to have been a perpetrator of Domestic Violence within the past 5 years there is a very strong presumption that the perpetrator should not share Physical or Legal Custody with the victim-parent.

Thus, if the court finds that you have committed Domestic violence within the past 5 years, there is a reputable presumption to be proven by a preponderance of evidence that neither physical nor legal custody should be granted to the perpetrator meaning that the victim of the violence would obtain sole physical and sole legal custody.

It may be possible to rebut the presumption under certain limited circumstances, but in practice it may be hard to convince a judge that the presumption should not apply. These are the factors that the court is supposed to consider the following factors:

Is it in the best interests of the child?
Did the perpetrator successfully complete a Batterer's treatment program?
Did the perpetrator complete an Alcohol or drug abuse-counseling program?
Did the perpetrator complete a Parenting class?
Did the perpetrator comply with the restraining orders?
Are there further incidents of Domestic Violence?

However, if both parents are perpetrators of domestic violence the statute does not apply.

This law clearly raises the stakes in custody cases where domestic violence is alleged. While the law affords significant protections to victims of violence, If you are accused of domestic violence you need to seriously consider fighting the allegations if you wish to obtain joint custody. If you are a victim of domestic violence you are virtually assured to obtain a sole custody order if you can prove the incident of domestic violence.

There are some other implications to domestic violence restraining orders. This year the legislature also amended the law to allow the court to permit clandestine tape recording of conversations with the domestic violence perpetrator. The Court must make an order to allow tape recording otherwise it is ILLEGAL. Furthermore, it is a felony-misdemeanor to continue to possess a firearm after a restraining order is issued.

Contact the Office to schedule a Consultation to discuss how Robert Spitz, Esq. can go to work for you.

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