For the Holidays: The Domestic Violence Checklist

For the Holidays: The Domestic Violence Checklist

For some families, holidays mean higher consumption of alcohol and drugs. If a drug or alcohol abuser also uses domestic violence to frighten or harm loved ones, holidays can be scary times for the victims. There are no national studies proving a firm connection among the various acts of domestic violence and substance abuse (in fact, localized studies I have seen are often mixed on whether there is a true connection), but many victims describe alcohol-induced rage preceding abuse.

If you have been a victim of domestic violence, you know you should stay out of harm's way. Do not join the abuser in drug or alcohol abuse. Try to be around others rather than alone with the abuser while he (or sometimes she) is most likely to want to hurt you. Most importantly, get help. Leave the abusive situation, even if you have no family support. Protecting yourself is too important.

Here’s who to call:

  • 911
  • LA Domestic Violence Hotline: 800-978-3600
  • National Domestic Violence Hotline: 800-799-SAFE (7233) (TDD 800-787-3224)

This blog will give you tips to keep you on track toward safety. (NOTE: If you have been wrongly accused of domestic violence, you have rights too.) Give us a call if you need help.


Restraining Order Checklist

1. Emergency Restraining Orders & Criminal Restraining Orders

2. Get to a Safe Place

3. Gather Your Proof

4. Determine Why You Are Leaving

5. Proving State of Mind

6. Obtaining Temporary DV Restraining Orders - Go to Court

7. Service of Temporary Orders on Abuser

8. Noticed or "CLETS*" Hearing/ Evidentiary Hearing

9. Service Again, but Different.

10. Do Not Violate Your Own Restraining Orders.

11. *CLETS Orders are Serious, Life-Changing Court Orders

The Details Will Make or Break Your Case

1. Emergency Restraining Orders and Criminal Restraining Orders.

If you or your children have been attacked, physically injured, or put in genuine fear of harm, the first thing to do is call the police, get to the emergency room for care, and take photos of the injuries and bruises while they are fresh. Waiting even 24 hours to do these steps will hurt your case.

The police, the hospital, and Child Protective Services will all discuss your options with you. If the attack warrants a criminal charge the police will submit your case to the District Attorney. However, most domestic violence is not criminally prosecuted. When you have a legitimate case you still have the right to obtain civil Domestic Violence Restraining Orders (DVRO).

2. Go to a safe place.

3. No Proof > No Protection! Liar's Contest! He said/She said!

To avoid losing at the final hearing, you must provide as much proof as possible at the preliminary hearing. Attach proof to your initial paperwork, authenticate it for the Evidentiary Hearing.

  • Police Reports (The police officer must be summoned to evidentiary hearing)
  • Hospital and Medical Records
  • Photographs of injuries or property damage
  • Written witness declarations
  • Emails, Texts, Social Media
  • Phone Recordings Left by the Abuser

4. Decide Why You Need Protection

Physical Violence

Always a proper subject for a DVRO, especially when repeated.

Harassment

Repeated acts of stalking, harassment, disturbing the peace, barricading, bullying, etc., are proper subjects of a Domestic Violence Restraining Order. (TIP: A short duration of repeated calls asking for another date is not Harassment.)

Mutual Breakup Anger

A breakup confrontation, which may even involve a mutual scuffle, screaming, a fall, neighbors called, etc., while bad, will not result in permanent restraining orders. These situations are NOT considered true domestic violence by the courts. Although rage at a breakup often results in a temporary restraining order because only one side is telling the story, permanent orders are rarely granted without physical injury.

Protection of Children / Domestic Violence

Often, child protection cases are filed as stand-alone DVROs that are better handled as part of a Parentage or Divorce lawsuit. DVRO hearings frequently do not completely handle the non-violence issues such as support, custody, visitation, health insurance, housing, move-always, travel, bill payment, etc. If a breakup with children will result in a divorce or parentage case, the Petition for the Family Law case should be filed WITH the request for Domestic Violence Restraining Orders to avoid procedural delays.

Custody Order Request Masquerading as Domestic Violence

Another ill-advised filing is the request for DVRO that is really a custody request. If you have no personal fear, but you have a fear that the other side will take and hold the kids, or does not know how to parent them, or has made mistakes in keeping the kids safe - These are issues for the Family Law court. If you bring your case to the wrong court you will end up with no orders and no protection.

5. Proving State of Mind

Past Acts/Past Fear

Because so many DVRO cases never survive the Temporary Restraining Order phase, you must make sure that your initial declaration explains your state of mind. If you experienced past physical acts of violence that made you afraid, you should list those acts with dates and details.

Present Fear

If past injuries or property damage occurred, but current verbal abuse makes you anxious that physical violence will occur again, you must put this in the declaration. However, if the abuser does not scare you, is incapable of hurting you, or if for some other reason you do not believe there is a potential for future violence, you may want to check whether you would be better off suing for property damage, or another tort, but not for domestic violence protection.

Fear of Future Violence

On July 1, 2014 the Appellate Court ruled in Nevarez v Tonna, a date stalker case, that if a past physical act of violence was frightening, and the abuser would not stop contacting the victim after the incident despite many requests, that the victim is entitled to restraining orders without having to prove fear that the abuser will hurt her again. This is a nuanced type of situation—there will be more cases testing this proof of fear ruling.

6. Obtaining Temporary DV Restraining Orders

Go to Court

WARNING! Initial Orders are often granted or denied on the pleadings alone.

Once you fill out your paperwork, either through the self-help center or through use of a lawyer, and you follow notice procedures, you will have a preliminary hearing. Although a person's declaration, without any other proof, will frequently result in a temporary Restraining Order, a declaration without proof has a high likelihood of failure at the noticed hearing. Put in as much proof as you have.

7. Service of the Temporary Restraining Orders

You do not have to (and should not) serve your own abuser! Use the Sheriff, a private process server, or a Relative. Make sure the Proof of Service is filed with the court.

8. Noticed or "CLETS" Hearing/ Evidentiary Hearing

You will put on your evidence. Bring your witnesses and your paperwork. Depending on the evidence presented by both sides, you will win a CLETS* Order, lose, or get some of what you want. The more proof you bring, the better you will do.

9. Service Again, But Different

Once you win, the Orders will be issued and must be served while you are still in court by the Bailiff or the Clerk. If the Defendant is not at court for the noticed hearing you will use the Sheriff for service.

10. Do not Violate Your Own Order!

Sending a mixed message, visiting, taunting, threatening, emailing, or otherwise inviting the very contact your abuser is now restrained from, is grounds to have the orders removed. Do not do it. If there are orders allowing “peaceful contact regarding the children,” this is an exception, but do not abuse the situation by adding other topics to your communications.

11. *CLETS Orders are Serious, Life-Changing Court Orders -

CLETS orders, officially, a California Law Enforcement Telecommunications System Order, is the ultimate "permanent record." If a person has a CLETS restraining order against him or her, his or her name is in the State database for domestic violence abusers. The likelihood of that person working in sensitive security jobs, law enforcement, many military and government assignments, etc., is reduced or eliminated. The person under a CLETS Restraining Order may usually not carry a gun, often may not work with children, and often may not be in education or therapy professions. This will impact you if you depend on support from the restrained person. It will definitely impact the restrained person.

If you are a true domestic violence victim you must obtain a DVRO CLETS Order as a means of long-term protection. You must bring your best proof at your initial filing of court pleadings so you will not face drawn-out legal obstacles before you win.

Warning: False or exaggerated claims will be fought against by the accused, often with every penny they have, because of the seriousness of the consequences.

If your proof is soft, be prepared to face formal depositions, rigorous cross-examination, and negative witnesses. If you lose your case, you may even be forced to pay part of the attorney fees for the other person's defense of his or her reputation.

Therefore, if you realize your claims are caused not by fear of physical harm but by your need to get out of a relationship that has gone sour, your own anger at a bad breakup, retaliation for cheating or other behavior by the accused, your desire for increased support, etc.—consider dropping your motion for Domestic Violence Restraining Orders before the noticed hearing to save time, money, and prolonged litigation.

If You Need Help

We should be able to enjoy all the holidays without domestic violence. However, some of us will need to get out of a bad situation.

Many people decide to handle Domestic Violence Restraining Orders themselves. Visit your local Courthouse for the paperwork and visit the self-help desk or attend a class. Take your proof and this checklist with you.

If you find you need professional help, our team of lawyers and staff have the experience you need.

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