Do I need an attorney for domestic abuse?
It depends! In theory, anything your attorney does, you can do yourself if you have the time, the experience, knowledge and expertise to get through the matter. You hire attorneys for their years spent in school, their years spent obtaining experience, and for their expertise to know what the court is looking for. Their learned ability recognize what is important to the client versus what is legally relevant to the judge and how to present that important information to a judge is what an attorney is paid for.
AS to domestic abuse situations, I find that most of the time when parties try to do it on their own, the percentage of prevailing claims is much lower. The factors and evidence the court is looking for are not necessarily the same things that are important to the party. As to the defending against a domestic abuse allegation, I think it is imperative to have an attorney because the ramifications of failing and having a permanent restraining order against you can be life altering. A permanent or CLETS order will actually go into a system which could impair your employment. You will not be permitted to carry or own a firearm, which could disqualify you from employment or cause you to be terminated, particularly in the military or in a security position. There are exceptions for the military, but it is up to the military whether they want us to allow the use of the serviceman’s exception..
What kind of legal protection am I entitled to if I have been abused?
The protections are varied, and there is a wide latitude to the courts. If the children are witness or part of the violence, it may also include the same restrictions as to the children. Some protections available include ordering a person to stay away from you, from your vehicle, your home and from your place of employment, to move away from your current home or residence, financial restitution for any damage that was done; restraint from going to certain places or certain events. Ownership or possession of firearms is mandatory. (If you are in the military, talk to your attorney about the service member’s exception.)
The person who is being restrained must, all of the time, stay away from the protected person. This can be very burdensome as it means that if they are at a restaurant and the protected person walks in, they must get up and leave even if they were there first. The most dangerous thing, I believe, is the effect it can have on your employment. Again, it precludes you from any security job which requires a firearm; any job that needs bonded are usually affected. Most of the hospitals in San Diego County do a background check, and if there is domestic violence charges, the person will not be hired. So, this is something that needs to be defended against and only prosecuted in the most severe cases.
How do I file a domestic violence claim?
Filing a domestic violence claim is initiated with a complaint which is a series of papers on judicial counsel forms that usually have a declaration of the applicant attached describing the violence that happened. It is important to ask for the proper protections and to include only those parties that need to be protected. The declaration itself is probably the most important part of the document as it is the evidence the court will review in granting or denying your request for a temporary order. It describes the violence that happened most recently and, going progressively backwards, any violence in the past. This is where a document needs to be very short and succinct but yet complete. It is important only to point out things that are legally relevant to a restraining order and not have it become a document which is just a gripe session for all problems you have ever had with this person. The court must find with a preponderance standard or in other words they must believe with better than 50% surety that there is a need for a restraining order, that the person has suffered or been threatened with violence and that there is a likelihood of future violence absent protective action.
How do I gather evidence and pursue a domestic abuse claim without my partner knowing?
If I am trying to get a restraining order against somebody perpetrating violence against me, usually, the evidence is the violence itself. Any other evidence you may need, police reports and the like, can be gathered through discovery and there is no need to inform the other person of it unless of course you are requesting it from them. The other person doesn’t need to be aware of any of your actions until you have filed your complaint; after which, you can still go through discovery without their knowledge. However, at some point, a competent attorney is going to ask for evidence you have against them and you are required to turn that over to them for review.
Additionally, prior to your trial you must provide the other party with any evidence you intend to present at trial. In your efforts to gather evidence you must be careful not to achieve it illegally. Even if we know the password of another person’s e-mail or have access to other personal information, the court frowns upon us tapping into other people’s email accounts, bank accounts and the like, while in an adversarial position, gathering information that would normally be private or inaccessible. There are channels for gathering this type of information and the discovery needs will certainly be addressed by your attorney.
What do the courts consider domestic violence?
Generally, the courts consider violence any harm, violence, threats of violence, or harassment that would cause somebody to be subjectively in fear of imminent harm. Courts do not like restraining orders. They recognize the impact it has on people’s lives, so they are looking at not only was there harm done, and if there is a history of violence or harassment, but is there a credible threat of future harm or harassment such as to warrant a restraining order. Absent that finding, the courts may be more skeptical about providing the protections provided by a restraining order; therefore, it is imperative to have an attorney assist you in presenting the best case to the judge providing the facts that he needs to reach that preponderance threshold.
Matters of Domestic Violence, Elder Abuse and Civil Harassment are offenses California courts takes incredibly seriously. People convicted of any of these offenses are faced with harsh penalties in order to deter this type of behavior and punish those found guilty. The Carlsbad domestic violence lawyers of Fischer & Van Thiel understand this difficult time and are ready to assist you with the protection and powerful representation you deserve.
The most important thing you can do if you have been a victim of a domestic violence, elder abuse or harassment incident is to act quickly and efficiently. Who you trust with your matter is imperative so ensure you find an attorney that is sensitive to your needs, listens to your issues and can be the powerful representation your matter deserves. It is also time sensitive to receive help in order to get a restraining order if the situation requires. An experienced family law attorney will be able to assess whether you can achieve protection through a final restraining order.
Whether your case involves serious threats or false allegations of domestic violence, immediate legal advocacy is paramount. The Carlsbad domestic violence lawyers of Fischer & Van Thiel are here to protect you so that you and your family don’t have to face these unfortunate battles alone. Our attorneys have the compassion and skills necessary to help you get the protection you need. We attend to every detail in building strong cases and presenting compelling arguments before a judge. Regardless of what side you are on, handling it on your own ignores the legal complexities and could compromise your rights. The attorneys at Fischer & Van Thiel are reputable and respected legal advocates throughout Carlsbad and the surrounding area. Contact us for a review of your case.
Domestic Violence Restraining Orders / Civil Harrassment Orders can be life changing!!!
When a spouse, significant other, family member or neighbor files a restraining order, you likely are not interested in being around that person in the first place. Some clients we have represented allowed the process to play itself out and did not secure the services of an attorney. Others appeared in court as their own legal counsel.
What they did not know and what you need to know is that the consequences are more severe than just staying away from the other person. Most restraining orders last for five years and remain on your record indefinitely. Routine background checks for work will be anything but routine as the ability to pursue employment is significantly impaired.
Military careers are at stake when servicemen and women come to us for help in defense of restraining orders. Essentially, the granting of the order effectively ends a career due to the ban on carrying firearms.
Many people are afraid to come forward with a claim of abuse and there is no reason to be fearful. With the right people on your side your matter will be resolved in the most reassuring and stress free way possible. Don’t be afraid to give our Carlsbad attorneys a call should you have a domestic violence, elder abuse or harassment case you’d like to discuss regarding a non-family member. Your call and any conversations are completely confidential and your case remains protected. To learn more, contact us today by calling 760-722-7669.
Unfortunately domestic violence happens often and to many types of individuals or couples. Domestic Violence can occur between spouses, those in dating relationships, children of parents, grandparents or any members of a household or family. If someone has put you in a threatening situation or you fear for your safety, you have the right to request a Domestic Violence Restraining Order.
If you feel you need to take action against those causing you physical or emotional grief, a Carlsbad attorney can help you or a loved one issue a Domestic Violence Restraining Order in order to put a stop to the “abuse” you are experiencing by another.
Abuse can be in the form of engaging in behavior such as stalking, threatening, battering, destroying personal property, disturbing the peace, attacking or molesting. Sexual assault and attempting to intentionally or recklessly causing or attempting to cause bodily injury is other examples of abuse.
If you have been the victim of injury it is important that you report them quickly as a restraining order will only be granted for recent acts of violence or abuse. There is no court fee associated with a request for a Domestic Violence Restraining Order.
OBTAINING A RESTRAINING ORDER
Requesting a Temporary Restraining Order (TRO)
If you think a temporary restraining order (TRO) is the necessary next step, you must complete a request for a Domestic Violence Restraining Order packet. The Judge will assess the facts of your situation and decide whether a TRO is justified in your matter. If granted, your TRO will remain valid and effective for three to four weeks until a hearing can be set for the court to decide whether a permanent restraining order should be ordered.
Possible Temporary Orders:
- Child Custody/Visitation: A Temporary Restraining Order (TRO) can be issued in order to cover a variety of matters such as child custody or visitation orders. If one parent thinks it is necessary for the best interest of the child and themselves they may request and a Judge may order that the alleged offender have no contact or supervised contact only with the minor child(ren). If this is so ordered, the specifics will be stated so parties are aware of the set terms regarding visitation details. Where a Judge feels that supervised visitation is necessary, the other party will most likely be responsible for any and all costs associated with hiring a professional supervisor.
- Resident Removal: If parties are currently residing together and the court feels this is not in the best interest of parties involved they may order that the alleged offender be removed from any residence in which you are currently residing. This is a possibility even if the alleged offender holds title or is the named “renter” of such property.
- Firearms: If the other party owns or is in possession of firearms, the TRO will require that the individual turn the firearms over the Sheriff and provide proof to the court.
- Recorded Communications: While in effect, a TRO can grant the protected party the right to record any and all conversations between them and the alleged offender.
There are other additional temporary orders that may be available depending on the specifics of your case. Speak with a qualified attorney to assess which type of temporary restraining orders would best suit your matter and your needs.
Service of Temporary Restraining Order
In order to set the temporary restraining order into effect it must be served on the other party. This involves the Sherriff’s Department personally delivering the TRO to the party that is to be restrained. The Sherriff’s Department can also assign another person, anyone over the age of 18 and not a party to the action, to deliver the restraining order to the individual.
The physical serving of the TRO document to the other party places the restraining order into effect and it immediately becomes active. That party is entitled to know the details of the court’s order and the next upcoming court date. Once served with the TRO the other party is officially restrained from contacting the protected party and must abide by the orders in the TRO for the duration of its stated length.
In response to the temporary restraining order the restrained party has the right to prepare documents in response to the orders placed against them. These responsive documents will be served on the protected party and the court. These documents are time sensitive, and must be served on the requesting party at least two (2) days prior to the scheduled hearing. If the responsive documents are not served in a timely manner a continuance may be granted if the responding party requests to further review and respond to the responsive documents.
After being served with the court documents, if the other party disagrees with the orders listed they have an opportunity to prepare their responsive documents and have them served on the protected party and the court. A Proof of Service must also be mailed with the Response. These documents must be served on the requesting party at least two (2) days prior to the hearing.
If the responding party attempts to make contact it is vital that you contact the police or speak with an attorney regarding how to best protect your violated rights. After a temporary restraining order has been served you have the right to be left alone and the responding party must be held to those restraints.
When your court date arrives, it will be up to the Judge to assess the evidence and facts of your matter in order to determine whether a permanent Domestic Violence Restraining Order is necessary.
Both parties will have the chance to present evidence and testify regarding the alleged incidents during the hearing, and the Judge will make his decision based on that information.
The help of an experienced family law attorney on your side can be very powerful if you want to ensure you obtain a permanent Domestic Violence Restraining Order is ordered by the Judge. A knowledgeable family law attorney will know how to structure your case in order to present you in the best way to the Judge and make sure the court understands the significance of the other party’s bad acts that caused the need for the restraining order.
“Safe at Home” Program
The “Safe at Home” program allows victims of domestic abuse to apply to a program governed by the Secretary of State’s office in California. If a victim participates and is protected by the “Safe at Home” program, a mailing address is provided for the use of the victim so any court documents, driver’s license, or voter registration. This service is allowed for up to four (4) years and first-class and government mail is provided to the individual within 48 hours of receipt.
Any person over the age of 65 and feels they have been a victim of elder/dependent adult abuse, may request a restraining order. Also, anyone between the ages of 18-64 can apply for an elder/dependent adult abuse restraining order if they have physical or mental limitations that prevent them from carrying out normal activities.
Any treatment that has caused physical or mental suffering to an individual could be deemed abuse and that victim could claim they have been deprived or provided inadequate care by a relative or caregiver. Abuse can occur in a variety of ways including abandonment, neglect, physical or mental abuse, or financial abuse.
If you or a loved one has experienced abuse relating to any of the sufferings above, you have the right to file a Civil Harassment Restraining Order and should contact a local Carlsbad Family Law attorney who is well versed and experienced with domestic violence. Please see below for more information on Civil Harassment Restraining Orders and be sure you are properly protecting your rights.
Mike’s Top 5 Articles About Domestic Violence
Unfortunately domestic violence is a real issue that affects many real people and families on a daily basis. If you or someone you love has been a victim of or accused of committing this crime are seeking toobtain or defend against a restraining order .you need to seek the help of a compassionate and experienced family law attorney who will protect you and your rights. Contact a Carlsbad divorce lawyer with Fischer & Van Thiel at 760-722-7669 to get the comfort and reassurance you need.
For more information or to schedule a consultation with an experienced Carlsbad domestic violence attorney, please contact us by filling out our online intake form or calling us at 760-722-7669