Domestic Violence FAQ

Scripps Ranch and Carmel Valley Domestic Violence TRO Lawyers

-What is the difference between a Temporary Restraining Order (TRO) and Permanent Restraining Order?

-Where do I file a Temporary Restraining Order?

-What do I need to prove to the court to obtain a TRO?

-Does it matter that the police did not arrest the other party after the alleged DV incident?

-What happens once the court grants the Temporary Restraining Order?

-Can the sheriff serve my restraining order on the perpetrator of domestic violence?

-What happens during the hearing for a permanent restraining order?

-Can the court make child custody or visitation orders in a DV case?

-Can the court make child support or spousal support orders in a DV case?

-Can the court order the other party out of our family residence?

-Will I be allowed to record phone calls from the perpetrator of violence?

-I’m scared because the aggressor owns a gun – what do I do?

-What happens if someone violates a restraining order?

What is the difference between a Temporary Restraining Order (TRO) and Permanent Restraining Order?

A temporary restraining order, or TRO, lasts only until the hearing the court sets to decide whether a permanent restraining order should be issued.  Even though a TRO, or emergency protective order, is only “temporary,” it is still a valid, binding and enforceable court order.  A temporary restraining order may be granted even though the respondent is not present in court and has not even provided notice of the hearing.  The burden of proof for the petitioner who seeks the restraining order is therefore low.  A permanent restraining order lasts longer than several weeks, and may last up to five years.  A permanent restraining order, or RO, may only be ordered by the court after notice of the hearing and an opportunity to be heard is provided to the respondent.

Where do I file a Temporary Restraining Order?

A domestic violence restraining order is filed with the appropriate family court.  Depending on whether the parties are involved in an underlying divorce, paternity or guardianship action, the parties may file a domestic violence restraining order under the existing case, or a person may file a new action.  Domestic violence TROs may be filed in the family court proper to file the action in the petitioner or respondent’s zip code.  There are family courts in South Bay in Chula Vista, downtown San Diego at the Madge Bradley Building and at the main Family Law Building, in East County in El Cajon, and in North County in Vista.

What do I need to prove to the court to obtain a TRO?

The standard of proof to obtain a temporary restraining order, move out orders, and child custody and visitation orders without notice to the other party is generally quite low.  Generally, courts err on the side of caution and grant most requests for temporary restraining orders since the civil liberties of the respondent are affected for only a short time.

Does it matter that the police did not arrest the other party after the alleged DV incident?

Probably not.  The family courts do not require the respondent to be arrested or found guilty of a crime to issue a TRO or permanent restraining order.  However, a police report or police officer’s testimony relating to the alleged DV incident might be important evidence in the pursuit or defense of a family law restraining order.  Certainly, a domestic violence criminal conviction is enough by itself to obtain a family law restraining order in perpetuity.

What happens once the court grants the Temporary Restraining Order?

Once the family court enters an order granting a TRO, a hearing for a permanent restraining order will be set by the court clerk.  The hearing will be set within approximately 20 days.  The court clerk will also provide the filing party with a copy of the temporary order for his or her records, and an extra copy for service upon the respondent.  The temporary restraining order and notice of hearing for the permanent restraining order must then be personally served on the respondent.

Can the sheriff serve my restraining order on the perpetrator of domestic violence?

Yes.  The sheriff is obligated to serve family law restraining orders on the responding party free of charge.

What happens during the hearing for a permanent restraining order?

Due to recent changes in the law, including the Elkins case and its progeny, the family court is required to permit the presentation of oral testimony and cross examination in domestic violence matters.  Generally, the court weighs the written declarations submitted by the parties, third party declarations submitted by those persons with knowledge of the alleged DV incident, oral testimony and the cross-examination of witnesses, and arguments by parties or their attorneys.

Can the court make child custody or visitation orders in a DV case?

Yes.  The court has jurisdiction to enter child custody and visitation orders, including orders for supervised visitation and abduction prevention, so long as a valid temporary or permanent DV restraining order remains in effect.  If there is an underlying divorce action or paternity case, child custody and visitation orders may be entered under those particular cases.  If a divorce or paternity case has not been filed by either party, and they have a child together, the court does not have jurisdiction to make custody orders if the request for a permanent restraining order is denied.

Can the court make child support or spousal support orders in a DV case?

Yes.  The court does have the jurisdiction to order child support or alimony, as well as orders for payment of certain debt and attorney fees in a DV action.

Can the court order the other party out of our family residence?

Yes.  The court has the jurisdiction to order the perpetrator of domestic violence removed from the family residence.  The court may order this at the time the initial temporary RO is ordered, or following the hearing on the request for a permanent DV prevention order.

Will I be allowed to record phone calls from the perpetrator of violence?

So long as the orders that resulted from a TRO or permanent RO hearing indicates that communications, including telephone and cell phone calls, may be recorded it is acceptable.  The Family Code permits the court to allow victims of domestic violence to record the respondent’s communication.  Without such an order, it is illegal to record the communications of another person without their knowledge and consent.

I’m scared because the aggressor owns a gun – what do I do?

Once a temporary and/or permanent restraining order is granted and served, the respondent must surrender all of his or her weapons to law enforcement.

Contact our Attorneys Today – Free Initial Consultation

To schedule your free initial and private meeting with one of our partners today, call our office at (619) 284-4113 or send us an email.

For more information on domestic violence, please click here.