How Do California Courts Decide Mutual Restraining Orders?

How Do California Courts Decide Mutual Restraining Orders
Troubled marriages or domestic relationships are sometimes plagued with violence. Accordingly, California’s Domestic Violence Protection Act provides authority for courts to issue restraining orders in such situations. Normally, one party to the relationship has been threatened or attacked and petitions a court to issue an order instructing the aggressor not to have contact with her. In rare cases, mutual restraining orders—those that direct both parties to stay away from the other—are issued.

Under the DVPA, a judge may issue a restraining order based on a written request from a party, but only after notice and an opportunity to respond has been given to the party to be restrained. In the case of a mutual restraining order, it is necessary that both parties make a written request for the other to be restrained. This point was recently emphasized by the Second District Court of Appeal in a divorce proceeding.

In the case, the wife filed a request for a restraining order. The husband submitted documentation in his response showing that the wife was currently restrained from contact with him by a criminal restraining order and that the wife had pleaded guilty to a charge of assault against him.

The court, of its own volition, issued a mutual restraining order prohibiting each party from having contact with the other. As its basis for restraining the wife as well as the husband, the court pointed to the criminal restraining order and found that the wife had already been restrained. As such, the court noted that the wife had already been deemed guilty of domestic violence beyond a reasonable doubt. Therefore, the court felt it had no need to make any findings regarding the need for an order restraining her.

The appeal court reversed the lower court’s order, however, holding that a restraining order could not be issued without a written request by the party to be protected. In this case, the husband had not made such a request. Rather, he had included documentation in his response to his wife’s request showing that she was currently under restraint.

The appeal court found that the regulatory scheme of the DVPA and its legislative history were clear that a party had to make an actual request for protection. The court also pointed out that the issuance of an order without proper notice to the party to be restrained, as well as an opportunity to respond, violated constitutional standards.

As you can see, the manner in which legal matters are handled can materially affect the outcome.  If you’re involved in a divorce or separation, you should work with an attorney with substantial experience in the area, who knows the mechanics of how family law matters are handled. To obtain experienced legal help, contact the Law Offices of Judy L. Burger at (415) 259-6636 to discuss your case.

Who Gets to Keep Pets in a California Divorce or Separation?

Who Gets to Keep Pets in a California Divorce or Separation
In some divorces or legal separations, one of the foremost concerns is what will happen to family pets. Many of us treat pets like family.  We may even ask for “custody” of them.  But the California courts treat pets as personal property, not like children.  Therefore, no one can obtain “custody” of a family pet.

Perhaps the clearest way to deal with pet “custody” issues is to avoid them in the first place.  Before you are married, include post-marital pet issues in a valid prenuptial agreement.  In such an agreement, you can deal with how you want your personal property to be split; this can include the treatment of pets.

If you didn’t have the foresight to include pets in a prenuptial agreement, all is not lost.  In most circumstances, it is best to cooperate with your soon-to-be-ex.  If your pet is important to you, you may wish to compromise on other issues in order to obtain possession of your animal.  The two of you may even agree to an informal arrangement for where the pet will live, or even for visitation.

Under normal circumstances, it is best to agree on the arrangement for the family pet.  However, if the parties cannot agree, the judge will decide who receives the pet.  Here are some likely considerations:

  • The connections of the pet with the parties and the children;
  • The pet’s primary caretaker; and
  • Acts or threats of violence against the pet, the other party, or a minor child.

This last factor can be particularly important because California has a statute designed to protect pets. California Family Code § 6320, which became effective in 2014, allows courts to take actions to protect personal property from destruction.  If a party can show “good cause,” a court can do two things: (1) grant the exclusive “care, possession, or control” of a pet to the appropriate party; and (2) order a party “to stay away from the animal and forbid” the taking or disposal of the animal.

At the Law Offices of Judy L. Burger, we understand how important family pets are not only to a couple but to their children.  Pets can provide stability and love in a time of instability. Make the call today to learn how our attorneys can advocate for you: (415) 293-8314.

Different Types of Child Visitation in California

Different Types of Child Visitation in CaliforniaDivorces and separations are replete with hot-button issues. Perhaps no issues are more frequently contested, however, than child custody and child visitation. In a prior blog, I discussed the different types and aspects of child custody. This blog will focus on visitation, which is typically granted to the parent who has the children less than half of the time.

A visitation order spells out how the child’s time will be managed. For example, a visitation order might address where a child would spend birthdays, Mother’s Day, Father’s Day, major holidays, and summer break.

The California Legislature has declared that the primary concern of courts in making custody and visitation decisions is the “health, safety, and welfare of children.” However, an additional public policy of the state is “assur[ing] that children have frequent and continuing contact with both parents.” The law specifically “encourage[s] parents to share the rights and responsibilities of child rearing” to meet this second goal, unless regular contact is not in the best interest of the children. Custody decisions are not made on the basis of a parent’s marital status, lifestyle, religious beliefs, or sexual orientation.

There are four types of visitation orders in California: (1) reasonable visitation; (2) scheduled visitation; (3) supervised visitation; and (4) no visitation.

A reasonable visitation order leaves decisions about how the parents will share the children’s time largely to the parents. These orders provide the parents with the ultimate flexibility; however, if the parents do not get along or if future disagreements may occur, these are not a good choice for the family.

Scheduled visitation provides clear direction to the parents about how the children’s time will be spent. These orders are ideal for parents who may not get along or communicate well because they provide clear expectations. If you’ve ever heard someone say that it was “their weekend” with their children, the court probably ordered scheduled visitation in their divorce. These orders dictate everything from birthdays and major holidays down to evenings and weekends.

Courts use supervised visitation orders when necessary to protect the health, safety, and welfare of children. In supervised visitation, the parent still gets to spend time with the children but only under the supervision and presence of another adult or, sometimes, a professional agency. Supervised visitation may be used in situations like the following:

  • Allegations or a history of abuse, neglect, or domestic violence;
  • A nonexistent or weakened parent-child relationship;
  • Parental mental illness or substance abuse.

In rare cases, a court will order no visitation for a parent. This is only done when visits would not be in the best interest of the children, such as when a parent refuses to refrain from alcohol or drugs while visiting with the child.

Remember that child support is a matter separate from child visitation. That means that a parent cannot deny visitation to another for nonpayment of support; likewise, a parent cannot deny payment because the other refused visitation.

An experienced family lawyer can ensure that you understand the issues that might impact child visitation and help you present them in the best light possible to a judge. The attorneys at The Law Offices of Judy L. Burger have substantial experience in Northern California and will represent you aggressively. Please contact us today at (415) 259-6636 to learn more.


California’s New Law Allows Petitions to Seize a Family Member’s Guns

California’s New Law Allows Petitions to Seize a Family Member’s GunsEffective January 1, 2016, a new law went into effect that allows family members to ask a court to seize their family member’s guns temporarily. The bill was introduced in the California Legislature in 2014 after the Isla Vista massacre near Santa Barbara. Before six people tragically lost their lives, the shooter’s mother had noticed that he was increasingly agitated, and she had heard him make threats of violence.

The law places strict limits on judges who are presented with petitions to seize guns.

Temporary Emergency Gun Violence Restraining Orders

The new law authorizes a judge to issue a temporary order to prevent the possession of guns for 21 days when a petition is presented by an immediate family member or a law enforcement officer and the judge finds the following:

  • There is reasonable cause to believe that the person presents an “immediate and present danger” of personal injury to another person or himself;
  • By having, owning, purchasing, possessing, or receiving a firearm; and
  • The order is needed to prevent personal injury to a specified person.

If the dangerous person can reasonably be found, a law enforcement officer must serve a copy of the order on him.

Ex Parte Gun Violence Restraining Orders

Probably the most controversial aspect of the new law is the power of a judge, in very narrow circumstances, to issue an order restraining a person from possessing a gun or ammunition without providing the person advance notice. This is known as an “ex parte” order. Before an ex parte order may be issued, the following criteria must be met:

  • There is a “substantial likelihood” that the person poses a “significant danger of harm” to another person or himself;
  • In the near future;
  • By having, owning, purchasing, possessing, or receiving a firearm; and
  • The order is needed to prevent personal injury to a specified person.

When these criteria are met, the judge may issue an order preventing the dangerous person from having firearms or ammunition in his custody or control. Ex parte orders have a limited shelf life: They cannot last longer than 21 days, and the judge must order a hearing within that 21-day period. At the hearing, the judge determines whether a one-year restraining order is warranted. Again, the person must be served with a copy of the order if he may reasonably be found.

One-Year Gun Violence Restraining Order

A longer term restraining order, up to one year, may be issued after the person receives notice and an opportunity to attend a hearing. Before a one-year order may be entered, the following must be shown by clear and convincing evidence:

  • The person “poses a significant danger of personal injury to himself” or another;
  • By having a firearm or ammunition;
  • A restraining order is needed to prevent personal injury to the person or another; and
  • Either less restrictive alternatives have been ineffective or they would be inappropriate.

The health and well-being of you and your children are important to the State of California. If you are concerned about your safety, do not hesitate. Call the attorneys at The Law Offices of Judy L. Burger today at (415) 293-8314. We have extensive experience in family law matters, including those involving family member violence and threats of violence.