Should you, your family member, or another become a victim of Domestic Violence, action should be taken immediately. In an emergency situation when violence is occurring, call 911. For non-emergencies, contact the police, sheriff, or other local law enforcement agencies.
Criminal Process -Penal Code: Law enforcement agencies responding to an emergency call may make an immediate arrest upon personally witnessing a crime, or may make an arrest based on a crime witnessed by the victim or others. The perpetrator need not be present at the time of the officer’s arrival in order to be subject to arrest. Once an arrest has been made, bail may be posted and an arraignment held shortly thereafter. If the criminal case goes forward, the defendant may request reduced bail, be released on his own recognizance, or even have the bail increased (if there is a flight risk.) A restraining order may be issued by the criminal law Judge. The case may be filed as a misdemeanor or a felony, depending on its severity. A preliminary hearing in felonies cases is heard and, in all cases, pretrial and trial dates are set .
In exigent circumstances at the time of the incident, law enforcement agency may request a temporary protective order be issued by a Judge on call. The temporary protective order will provide relief only for a short period of time, allowing the victim, with little or no notice, to seek a restraining order from the Superior Court by filing a petition and an order to show cause requesting relief.
Domestic Violence Prevention Act: The following relief is available with a domestic violence restraining order : (1) restraint on personal conduct such as contacting, molesting, attacking, striking, sexually assaulting, battering, telephoning, sending any messages to, following, stalking, destroying personal property of, disturbing the peace of, keeping under surveillance, or blocking movements in public places or thoroughfares of the protected party, (2) “kick out” orders to have the restrained person immediately move from the residence pending a noticed hearing, and/or (3) orders requiring the restrained party to stay 50/100 yards away from the protected person and his/her residence, place of work, school, and vehicle. In addition, temporary orders regarding child custody, visitation, support, and property may be issued. The restrained person must relinquish firearms or be in violation with a $1000 state fine or a federal $25,000 fine and 10 year prison sentence. Recording of telephone calls might be permitted.
Orders, once made, are effective in all 50 states, the District of Columbia, tribal lands, U.S. Territories, and are placed on the CLETS communications system. Violation of a court order is subject to State and Federal penalties and the Violence Against Women Act, or VAWA.
If a temporary restraining order is initially issued, an order to show cause is set, giving notice and opportunity for the restrained party to appear at court and present their side of the case. Restraining orders may be issued at the hearing, effective up to 3 years and upon further request, can be granted for a longer period.
How domestic violence affects child custody and visitation orders in will be discussed in the third and last segment of this series.
Delilah Knox Rios, Attorney at Law has practiced law for over 23 years with an emphasis in Family Law, Divorce, Child Support, Spousal Support, Complex Community Property, Paternity, Collaborative Family Law, Mediation, Real Property, Small Business Contracts, Wills and Trusts providing these services to clients in all counties of Southern California. She is a Certified Family Law Specialist, State Bar of California and Board of Legal Specialization.