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.

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