Restraining Orders and Divorce in California: What to Know - CUSTOMIZE
A restraining order request can change a divorce or paternity case almost overnight. The paperwork may affect where you live, how you communicate with your spouse or partner, when you see your children, and what you must do before an upcoming court date. Whether you are asking for protection or have been served with a request, understanding the basics can help you take the right next steps.
How a Restraining Order Fits Into a Divorce or Custody Case
A domestic violence restraining order is separate from a divorce case. It can protect a person who has been abused by a spouse or former spouse, a co-parent, a close relative, or someone they live or lived with as more than roommates. Under California law, abuse is not limited to physical harm. It can include threats, harassment, stalking, and disturbing the peace, which includes coercive control.
A judge can order the restrained person to stay away, avoid contact, move out of a shared home, and follow child custody and visitation orders. The order can also address child support, spousal support, and control of certain property.
What Happens After a Request Is Filed
A judge usually decides whether to grant a temporary restraining order the same day or the next business day. A temporary order lasts until the court hearing, which is typically about three weeks later. At the hearing, the judge decides whether to issue a longer order, which can last up to five years.
This is general information. How the law applies to you depends on your specific facts.
Practical Steps Before Your Court Date
- Read carefully every page, including the hearing date, stay-away distances, and any custody or firearms orders. Firearms orders can require a restrained person to turn in or sell firearms and ammunition within twenty-four (24) hours.
- Follow every restriction exactly. A restrained person must obey the order even if the protected person reaches out. Only the court can change the order.
- Preserve texts, emails, voicemails, and social media messages without editing or deleting them.
- Attend the hearing. Missing it can result in orders being made against you without you being heard under oath.
How Restraining Orders Can Affect Custody
If a court finds that a parent seeking custody committed domestic violence within the previous five (5) years against the other parent, the child, or specific other people, California law creates a rebuttable presumption that giving that parent sole or joint custody is detrimental to the child’s best interest. That presumption can be rebutted with evidence, and every case depends on its own facts.
A Common Scenario
Consider a spouse in the middle of a divorce who is served with a temporary restraining order a week before the hearing. The papers include a move-out order and a temporary parenting schedule. That person needs to understand what the order requires right away, whether and how to respond in writing, and how the outcome could affect the divorce and custody case.
Burden of Proof
It is very important to understand that the burden of proof in a restraining order case is not the same as a criminal case. First there is no jury in a restraining order case. The judge decides whether to grant or deny the restraining order request after hearing the evidence. This is based on testimony (the parties and witnesses) and documentation (photos, videos, texts and other documents). The standard of evidence is a mere preponderance of evidence. This is a very low standard. It is not a clear and convincing evidence standard in criminal cases. It is basically a more likely than not that the abuse happened.
Speak With a Pasadena Family Law Attorney
When you hire me, you deal with me. I personally review your paperwork, explain what the orders require, and prepare you for the hearing.
I represent clients in the Pasadena area, all of Los Angeles County an especially the San Gabriel Valley. I also appear from Santa Barbara County to Orange County. Call 626-304-7062 to schedule a confidential consultation.
If you are in immediate danger, call 911. The National Domestic Violence Hotline is available 24 hours a day at 1-800-799-7233.
This article provides general information about California law and is not legal advice. Reading it does not create an attorney-client relationship, and the outcome of any case depends on its specific facts.