When Do You Need A California Domestic Violence Attorney?
- JC Serrano | Founder - LRIS # 0128
- Nov 12, 2020
- 8 min read
Updated: Nov 14, 2022
Everything you need to know about California domestic violence
Domestic violence is abuse or threats when there is or has been an intimate relationship between the person being abused and the abuser (married or domestic partners, dating or used to date, working or living together, or raising a child together).
In this article, we will explain in more detail what is considered domestic violence in California. Your options are if you are a victim of domestic violence AND if you are accused of domestic violence in California.
What is considered domestic abuse in California?
"The laws of domestic violence state" assault "is:
Hurting others physically or attempting to hurt them, purposely or recklessly;
Sexual abuse;
Make anyone fairly fearful of being seriously harmed by them or someone else (such as threats or attempts to harm others); OR
Actions such as bullying, stalking, threatening, or hitting; disturbing the peace of someone; or damaging someone's personal property.
Physical violence is not merely a blow. Kicking, shoving, pushing, pulling hair, throwing objects, scaring or trailing you, or stopping you from coming and going freely can be violence. It can also include the physical abuse of pets in the household.
Bear in mind that domestic violence harassment does not have to be physical. Abuse may be verbal (spoken), psychological, or emotional. To be raped, you do not have to be physically hit. Abuse also takes several forms, and offenders use a variety of strategies to influence and have authority over the abused person.
Suppose you are abused in any of these ways or feel afraid or manipulated by your partner or someone you are close to. In that case, even if you hesitate to ask for legal protection, it may help you to speak to a domestic violence counselor. Find resources on domestic violence in tribal societies.
In the California Penal Code, you can find criminal domestic abuse rules, such as Penal Code section 273.5, Penal Code section 243(e)(1), and others.
Restricting Orders for Domestic Violence
A restraining order for domestic violence is a legal order that helps protect people from someone they have a close relationship with harassment or threats of abuse.
You will apply for a restraining order for domestic abuse if:
A person has abused you (or has threatened to abuse you); AND
With that person, you have a close relationship. You're the:
Domestic partners, married or registered,
Divorced or divorced,
Dating or, to date, used,
Living together or living together (more than roommates) together,
Parents of a child together, OR
(Parent, infant, brother, sister, grandmother, grandfather, in-law) Closely related.
You should also file a restraining order on behalf of your child to protect your child (and you and other family members) if you are a parent and your child is being abused. If your child is 12 YO or older, he or she will file a restraining order on his or her own.
There are some kinds of orders you can apply for if you do not qualify for a domestic violence restraining order:
Restraining order for civil violence (can be used for neighbors, roommates, colleagues, or more distant family members such as cousins, uncles, or aunts, etc.). Find out more about getting a restraining order for civil abuse.
(if the person being assaulted is 65 or older, or between 18 and 64, and a dependent adult). Elder or dependent adult violence restraining order. Find more detail about obtaining a restraining order for older or dependent adult assault.
Workplace abuse restraining order (filed by an employer to protect an employee from another person's violence, stalking, or harassment). Find more details on obtaining a restraining order for workplace harassment.
If you are a victim of domestic violence in California.
Speak to a family law facilitator or your court's self-help center who might help you. The tribe may have services to support you if you live in an Indian tribal community or reservation. The court may be willing to grant you a restraining order if there is a tribal court. Tap on the tribal courts for more information.
What Would a restraining order do?
A restraining order from a California judge. It may order the restrained person to:
Do not touch you, your children, other relatives, or those living with you, or go near you;
Keep away from your home, job, or schools for your kids;
Moving out of the house (even though you are living together);
Not to have a weapon;
Meet custody and visitation orders for children;
Pay care for infants;
Pay support to a spouse or girlfriend (if you are a married or domestic partner);
Keep away from your dogs, all of them;
Shift to the covered individual the rights to a mobile phone number and account (read more);
Pay some bills;
Do not make any adjustments to insurance policies;
Do not incur major expenses or do something necessary if you are married or have domestic partners to harm you or the other person's property;
Release some property or return it; and
Complete a 52-week recovery program for a batterer.
The order is entered into a statewide database system ( called CLETS) that all law enforcement officers can access until the court issues (makes) a restraining order. And in the United States, restraining order operates everywhere. Contact your new local police if you move out of California, so they can know about your orders.
Your restraining order will be effective anywhere in California, and the police will enforce it if you travel to California with a restraining order from another state or if you have a restraining order granted by a tribal court (in California or anywhere in the U.S.).
You should file the order with the court if you want your restraining order to be entered into California's statewide domestic violence database system. Fill out and carry to your local court an Order to Register Out-of-State or Territorial Court Protective / Restriction Order (CLETS) (Form DV-600PDF).
Take a certified copy of your order. But remember that your out-of-state or tribal court restraining order does not require you to file. Even if you do not report it, a valid order is enforceable.
Domestic Abuse Forms Restraining Orders
Protective Order of Emergency (EPO)
An EPO is a kind of restraining order that law enforcement can only seek by contacting a judge. Judges are always available 24 hours a day to issue EPOs. So, a police officer responding to a domestic violence call will ask a judge for an emergency protective order at any time of day or night.
The emergency protection order begins immediately and lasts up to seven days. The judge will order the violent individual to leave home and stay away for up to a week from the victim and any children. That allows enough time for the victim of the violence to go to court to apply for a temporary restraining order.
You must petition the court for a temporary restraining order (also called a "TRO") to obtain an order that lasts much longer than an EPO.
Temporary Order to Restrain (TRO)
You fill out papers where you tell the judge all that has happened and why you need a restraining order when you go to court and obtain a domestic violence restraining order. He or she can grant you a temporary restraining order if the judge thinks you need protection.
Before the court appearance date, temporary restraining orders typically last between 20 and 25 days.
Permanent "Order of Restraining"
A judge in California may issue a "permanent" restraining order when you go to court for the hearing that was arranged for your TRO. As they usually last up to 5 years, they are not necessarily "permanent."
You should apply for a new restraining order at the end of those five years (or once your order runs out) to stay safe.
Judicial Protective Order or Order of "Stay-Away"
The district attorney will also file criminal charges against the attacker when a domestic violence incident (or series of incidents) occurs. This is the beginning of a criminal court case. A criminal protection order against the defendant (the person who is committing violence and abuse) is usually imposed by the criminal court when the criminal case is open if the defendant is found guilty, for three years after the case is finalized.
What if you are arrested and accused of domestic violence?
If an individual is arrested for a domestic violence crime, depending on various factors, they will ultimately be charged with either a felony or a misdemeanor. There are important distinctions between felony and misdemeanor-level crimes in California, and cases that begin as felonies can often be reduced to misdemeanors. The distinctions between a domestic abuse crime and a misdemeanor offense and what these differences mean for those facing charges are important to consider.
The difference between misdemeanors and felonies
The most serious criminal offense in California is a felony. Many convicted of felonies will be sentenced to a California state prison system to spend time. An individual may be convicted of a crime and placed for a specific period of time on formal probation. As a condition of the felony, the judge may impose up to a year in prison. A conviction of a felony has important effects, including the loss of voting rights, and getting a conviction of a felony domestic violence on one's record will keep people from being eligible for certain jobs and housing opportunities.
Misdemeanors are described as county jail offenses that are punishable by up to one year. Many individuals convicted of misdemeanor-level offenses are put on informal probation and will have to serve as a probation condition for some time in prison. Misdemeanors may also have collateral effects and may remain on an individual's record unless and until the conviction is deleted.
Some felonies are known as "wobblers," which may either be prosecuted as felonies or misdemeanors. When deciding what degree of criminal charges to bring, prosecutors will weigh the facts of the case and the defendant's criminal record. In certain situations, under domestic violence California Penal Code Section 17(b) PC, the judge can reduce a felony Domestic Violence to a misdemeanor when the crime is a wobbler.
In certain domestic abuse cases, in violation of California Penal Code Section 273.5 PC, a wobbler crime, the defendant may be arrested on suspicion of corporal injury to a spouse. The investigator assigned to the case and the Assistant District Attorney will review the case before the defendant's arraignment date to determine what amount of charges to file.
Usually, where there are injuries or when the suspect has a history of domestic abuse convictions on their criminal record, a prosecutor may file felony charges. Punishments are also raised when, as a consequence of the defendant's actions, the victim experiences severe bodily harm.
Under California Domestic Violence Penal Code Section 273.5 PC, the prosecutor can file charges of corporal injury to a spouse as either a felony or a misdemeanor. Alternatively, the prosecutor may violate California Penal Code Section 243(e) PC and charge the defendant with domestic battery. Domestic battery is a misdemeanor that often requires physical contact that involves no harm, such as when a husband and wife are pushing and shoving.
Domestic abuse as an offense on strike
There may be situations where a domestic violence crime may be considered a strike under California's Three Strikes Statute. A conviction results in heightened penalties for a strike offense that can be used to strengthen potential convictions. In violation of Domestic Violence California Penal Code Section 245 PC, one example of a strike crime is assault with a deadly weapon.
Have you been charged with domestic violence in California?
The consequences of a domestic violence charge can be permanent and affect your personal and professional life. You should immediately consult with a criminal defense attorney with experience in domestic violence.
You can submit a request online 24 hours a day. Free case review within 15 minutes.
By chat, you'll be connected with a criminal defense lawyer within 5 minutes.
By calling the 24-hour lawyer referral hotline at 1-661-310-7999
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