A California Court of Appeals recently held that a restraining order cannot be issued under the Domestic Violence Prevention Act unless there was abusive conduct that placed victim in reasonable apprehension of injury. In S.M. v. E.P. No., D055230, proof of badgering without physical violence is not enough for the court to issue a restraining order. Without physical confrontation, it would be difficult for words to place one in reasonable apprehension of imminent serious bodily injury. While the trial court granted the restraining order, it was declared improper on appeal.
Pursuant to California Family Code §§ 6300 and 6306, a restraining order may only be issued to prevent a recurrence of domestic violence if there is reasonable proof of past abuse. Courts issue restraining orders to protect a person from physical pain, injury, and threats of physical pain or injury. These may be issued against a family member, a member of the household, or a stalker.
Domestic violence, more specifically, pertains to abuse perpetrated between a person and their spouse, cohabitant, person in a past intimate relationship, or one’s child. CFC § 6211. But for an act to qualify as abuse, one must intentionally or recklessly cause or attempt to cause bodily harm, commit sexual assault, or place a person in reasonably apprehension of imminent serious bodily harm. CFC § 6203. Words alone, however, would rarely give rise to a domestic violence claim.
Additionally, if a restraining order is issued before or in the midst of a child custody dispute, then it may prevent the recipient of that order from gaining custody. CFC § 3044.
Though the law may seem organized and straight-forward on its face, this is rarely the case. Family law is a complex area and it takes someone with intimate knowledge of the law and experience navigating local courts to get you the best possible result in your case. It is vitally important for you to hire an experienced Southern California Family Law Attorney to make your case. With over 30 years of experience, Wallin & Klarich have handled thousands of family law cases. We know that your family and children are important to you and we feel the same way. Call us at (888) 749-7428. We will be there when you call.
