Service of Domestic Violence Temporary Restraining Order Must be Timely

Divorce and Separation Lawyers in Irvine, Orange County

Timely Service of Temporary Restraining Order is Required for Validity

The process to obtain a restraining order against someone who is harassing, badgering, stalking or abusing you can be a difficult task.  So can defending yourself against frivolous claims of domestic violence in the family law courts.  In a recent but unpublished District 2 appeals case, the Court hammered home the point that the timing guidelines for service of a restraining order on the perpetrator of domestic violence must be strictly followed or the restraining order will be dismissed as a matter of law.

The law provides for service guidelines where papers seeking affirmative relief from the superior court must be filed and served on the opposing party in a timely fashion.  This provides the person who receives the papers ample time to prepare a response and appear at the hearing to defend himself or herself (i.e. “notice and opportunity to be heard.”)  When a motion is filed generally, the guidelines for timely service are found in the California Code of Civil Procedure (CCP), specifically at section 1005.  Most often, the person seeking an order from the court must serve the other party at least 16 court days before the hearing.  However, the law allows for exceptions.  In domestic violence cases, the court is allowed to (and always does) provide an “order shortening time” wherein the person serving the motion for a protective order must serve the other person at least 5 days before the hearing. 

In the  recent and unpublished case of Aubry v. Fields (District 2, Division 4, filed April 11, 2011), the appellate court ruled that a temporary restraining order served less than 5 days before the hearing must be dissolved, or dismissed.  Even though the hearing was continued to another day, the temporary restraining order was held to be irrevocably invalid due to the lack of proper service.

Restraining orders can be tricky.  They must be filed and served properly.  Our attorneys are skilled in filing temporary restraining orders, litigating for permanent restraining orders, and defending restraining orders.  We have helped hundreds of clients assert their rights in the superior courts throughout Southern California.  Call us for your free case evaluation today at (714) 667-0045 or email us.

Domestic Violence: “Badgering” is not DV Abuse

Huntington Beach Domestic Violence Family Lawyers – Certified Family Law Specialists

Recent case of S.M. v. E.P. (2010) 184 Cal. App. 4^th 1249, holds badgering is not domestic violence thereby limiting the application of Nadkarni.

The California Court of Appeals greatly expanded the meaning of “abuse”, which is defined in the Family Code 6300 series, approximately one year ago in the widely discussed case of Marriage of Nadkarni (2009) 173 Cal. App. 4^th 1483.  In that case, the Court analyzed the meaning of “disturbing the peace,” finding that emails that disturbed the regular calm of a person presented a prima facie case for domestic violence.  That case greatly expanded the meaning of domestic violence and allowed persons to file for restraining orders based on minimal allegations.

In S.M., the parties were cohabitees for five years and had a child together.  The father filed a paternity action to obtain child custody orders and to prevent the mother from moving to her home state of Iowa with the child.  Upon the father’s application, the court issued an order forcing the mother to return to California with the child after she had left temporarily to Iowa.  After the mother returned, the parties had an argument, the father was arrested, and the mother filed a restraining order the next day alleging that the father threatened to kill her. 

At trial, the court did not find that the father made a death threat.  Rather, the court found that he made a “very negative comment” and was “badgering” the mother.  The trial court issued a six month “permanent” restraining order against the father based on that finding.

As family law attorneys are aware, the finding of domestic violence between two parents may have an effect on child custody and visitation orders pursuant to Family Code 3044, among other lasting effects.  Basically, perpetrators of domestic violence are presumably not entitled to custody of a child; however, the presumption can be rebutted by evidence.  Based on this presumption, the father’s attorney asked the trial judge whether the court intended to presume that because of the finding of domestic violence the father should not be awarded the legal or physical custody of the minor child.  The trial court indicated that it would not likely apply the presumption.

Abuse is defined in Family Code 6320, and includes molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning, including, but not limited to, annoying telephone calls as described in the Penal Code, destroying personal property, and disturbing the peace of the other party. On appeal, the appellate court said that without a finding that the father made a threat to the mother, a finding of “badgering” is legally insufficient to support issuance of a permanent restraining order (which can last up to five years under the current law).  The court reasoned that badgering, if it does not arise to the level of harassment or abuse, cannot serve as the basis of a temporary or permanent restraining order.

Contact our Family Lawyers at (714) 667-0045

Because restraining orders are registered in law enforcement’s CLETS system, may have negative effects on employment and prohibits restrained persons from carrying firearms, the issuance of a permanent restraining order is serious business.  If you have a case where restraining orders are at issue, contact our office today to speak with one of our attorneys.  You can also send us an email and we will contact you immediately.