Domestic Violence Lawyers in Temecula
It is critical to handle situations involving domestic violence as quickly and effectively as possible. These situations are among the most sensitive and important areas of family law. The experienced team of Temecula domestic violence attorneys at Wilkinson & Finkbeiner can help protect you – and will quickly pursue the best course of action for the nuances of your individual situation.
Domestic violence litigation participants need to understand the huge significance that a finding of domestic violence may have on aspects of their life. Many respondents that are served with a DV TRO (temporary restraining order) simply may not care that they were served with the TRO because they don’t want to have any contact with the other party any. Not responding to the case or agreeing to the DV TRO, however, is a big mistake! A finding of domestic violence against a party will have at least the following negative consequences:
- Every restrained person found to have committed an act (or acts) of domestic violence will have their information put into the CLETS system – this is the California-wide law enforcement computer system that contains information about restrained persons. Potential employers may have access to this information, especially with employment positions where a party has to pass a background check.
- Upon a finding of DV, there is a presumption that the party should not have any legal or physical custody of a child involved in their case. This presumption must be rebutted by the perpetrator in order to have the right to make decisions for their children and to have any physical custody of them.
- Finally, there could be significant financial ramifications when a person commits domestic violence. When a court is determining either temporary or permanent alimony or spousal support, the fact that a person committed domestic violence is a mandatory determining factor. If the party requesting spousal support committed an act of domestic violence, for example, the court can reduce or eliminate any spousal support to be paid to that person.
Domestic Violence in Temecula
According to California law, domestic violence is classified by the following characteristics:
- Physical violence. Any form of physical violence, including hitting, slapping, punching, pushing, or using inappropriate force, is considered domestic violence.
- Verbal threats. Verbal threats of physical violence are also considered domestic violence.
- Emotional abuse. DV does not have to be physical to be considered as “violence” under the law. Emotional abuse, such as harassment, stalking, using degrading language consistently, yelling, shouting in the presence of children, and so forth all constitute domestic violence.
- Pattern of harassment. Any pattern of harassment over a period of time is considered domestic violence.
Close relationship. If any of the above characteristics involve a victim and abuser with a close “familial” relationship, it is considered domestic violence. Close relationships are defined by the courts of California as two people who are “married, divorced, separated, dating or used to date, live together, or used to live together as a couple” or “mutual parents” of a child, or “parent, child, brother, sister, grandmother, grandfather, or in-laws.” Because of the close relationships that these individuals share these cases are heard in the Family Courts, which are used to dealing with dealing with disputes between families. Otherwise, if there is violence between people who do not have this familial connection (for example, neighbors, friends) the case is not classified as a “domestic violence” case, but rather a “civil harassment” case filed in the superior court and not in the family court.
Restraining Order Proceedings
When domestic violence becomes habitual and/or dangerous, victims are advised to seek restraining orders. The court will always err on the side of caution and at least grant a temporary restraining order if there is any allegation of domestic violence that falls under the definitions set forth in the Domestic Violence Prevention Act (see California Family Code Section 6300 et seq.)
In Temecula and Riverside County, there are two types of restraining orders issued by the court: temporary and permanent. They are described as follows:
- Temporary restraining order. A temporary restraining order is a restraining order that lasts until a specified point in time. Usually this time period cannot exceed 21 days. This is usually the next court hearing date but can be assigned for any length of time. While it is only temporary, it is still binding and valid and will restrain the opposing party from contacting the protected person. While the presiding judge prefers for both parties to be in court, a temporary restraining order can be issued even when the respondent is not present.
- Permanent restraining order. While not permanent in the true sense of the word, a permanent restraining order can last anywhere from several weeks to five years. This type of restraining order can only be ordered after proper procedures are filed and followed including providing the restrained person with notice of the proceeding and an opportunity to a hearing, including a trial. Each side is afforded the opportunity to present a case, and the judge makes a decision. Permanent restraining orders can be renewed after they expire.
Generally, restraining order proceedings following this course: First, the temporary restraining order is filed by the person seeking to be protected. It will be effective on the date it is filed and approved by the judge. They can include in the TRO any children to be protected as well as any pets to be protected. The protected person can seek custody and support orders as well within their initial filing for a temporary restraining order. Usually the court will make custody orders on an emergency basis without any notice being given to the opposing side, but the court will not order any support at that first, unnoticed hearing. Upon the filing of the TRO, a hearing will be set which will be scheduled within approximately 21 days by statute.
After the temporary restraining order is filed, the opposing side will be served with the papers. The sheriff will serve the papers for free, or a process server can serve the papers for a cost. The TRO may contain move out orders if requested. There are many rules that govern when and how respondents will be served. In all cases, the respondent must be “timely” served before the hearing or the hearing cannot go forward. At the hearing, the person seeking the restraining order is essentially requesting the court grant them a “permanent” restraining order. The responding party has a right to have the court continue the hearing upon their request. If the respondent wants to move forward with the case, and the petitioner requests a continuance, the court cannot grant a continuance and the hearing must go forward. Each party has a right to an “evidentiary hearing”, which means a mini-trial.
When a Restraining Order is Necessary
Restraining orders are valuable in a variety of unique situations. Most commonly, people file for temporary or permanent restraining orders for the following reasons:
- Physical safety. The most practical reason to file is for physical safety and wellbeing. Domestic violence can put you in harm’s way and cause physical and emotional injuries. A restraining order removes the abuser from your life and serves as a form of protection.
- Peace of mind. Emotionally, a restraining order gives you peace of mind. Instead of constantly looking over your shoulder, you are free to live your life without threat of violence.
- Future litigation. If there is an impending divorce, separation, or legal battle, your ability to obtain a restraining order is beneficial for your case.
Wilkinson & Finkbeiner, LLP
At Wilkinson & Finkbeiner, we put family first. We believe domestic violence should be promptly addressed with a professional who will work diligently to protect your rights and wellbeing. If you are being abused by someone you know, seek immediate legal action. Remember, one of the most effective tools at your disposal is the ability to file for a restraining order. Alternatively, if a false restraining order has been filed against you, it is imperative that you have aggressive, smart representation to protect you from incredibly harsh consequences of having a permanent restraining order against you.
With years of family law experience and certification from the State Bar of California Board of Legal Specialization, our attorneys are here to help. For compassionate, quality legal representation that is simultaneously aggressive and proven successful, contact Wilkinson & Finkbeiner. Our Temecula domestic violence attorneys will help you through the process of handling your domestic violence issues and offer every client a free confidential consultation. We also handle cases of divorce, child custody and support, as well as pre and post nuptial agreements.