Does the Time Since the Last Outburst Matter When Seeking a Restraining Order?

Wayne J. Rice, CFLS

Posted By:
May 23, 2018

Divorce Law Blog

DOES THE TIME SINCE THE LAST OUTBURST MATTER WHEN SEEKING A RESTRAINING ORDER?

Often, when a client is considering a domestic violence restraining order (“DVRO”), he or she (usually she) wonders if it’s still possible to obtain a restraining order because the last act of physical violence occurred months, or sometimes even years earlier.

The answer is “yes” for several reasons.

First, the definition of “abuse” in the Domestic Violence Protection Act (“DVPA”) is very broad and can include actions outside of physical abuse like violence against pets, destruction of property in the victim’s presence, intimidation, emotional violence, harassment, stalking, and even the unauthorized release of personal information. So, even if there has not been physical abuse in the very recent past, there may still be grounds for a restraining order.

Second, case law makes clear that the courts will look to all of the facts, not just the interval since the last violence, to determine if a restraining order is necessary. For example, courts have granted restraining orders or kept them in place despite an absence of proof of recent violence if the abuser had been outside the jurisdiction for some time, or otherwise unable to perpetrate abuse because he or she was incarcerated.

Finally, Family Code section 6301 which became effective on January 1, 2016, provides that the length of time since the last incident of violence is not, by itself, determinative. The statute directs that courts must look at all of the circumstances to decide if it should issue a DVRO.

Simply put, the time since the last act of physical violence does not determine whether a restraining order should be granted. Call Sarah Schaffer if you believe that you need a restraining order to protect yourself or your children.

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