A determined number of local Santa Clara County District Attorneys recently united and persuaded our legislature to pass a new law that would change the way in which criminal Courts issue protective Orders for domestic violence cases. Effective January, 1, 2012, a criminal Court Judge will be free to issue a protective Order against a criminal defendant convicted of a crime of domestic violence for a period of up to ten years, regardless of the sentence imposed against the Defendant. Previously, a criminal Court Judge only had the ability to issue a protective Order as a condition of probation, not to exceed the term of probation (except in cases where the Defendant was convicted of Penal Code Section 273.5 or 646.9).
The chief complaints against the “old" system of issuing protective Orders in criminal Court were that in most cases, a protective order could only issued for a period of up to three years (the normal term of probation). Additionally, those individuals sent to state prison for the most serious cases of domestic violence would not be issued protective Orders at all because they were not given a grant of probation upon which a protective Order could be issued. Finally, in some cases where a Defendant plea bargained his case to a “disturbing the peace" and probation was denied, the Court was without jurisdiction to issue a protective Order.
In Family Court, a Judge can issue a restraining Order for a period of up to five years, and has the discretion, upon proper application, to extend that restraining Order indefinitely. Although Family Court Restraining Orders often contain Orders for custody, visitation, spousal support and child support, those issues are often addressed separately from the underlying Restraining Order as the case marches forward. So, by the time a Restraining Order in Family Court gets to the point of a contested hearing, there is often only one issue left to address: whether a Restraining Order should be issued and if so, under what terms and for how long. In cases where there is a companion criminal prosecution for the act(s) which gave rise to the issuance of a Temporary Restraining Order in Family Court, it seems redundant for a Family Law litigant to pursue a Family Court Restraining Order if the criminal Court will grant a Restraining Order for up to ten years. Along with redundancy, the Family law litigant will likely end up paying an attorney for his or her services in obtaining the Family Court Restraining Order, when the Order issued in criminal Court is free of charge.
That being said, there are some cases where a Family Court Restraining Order is sought without a companion criminal prosecution. However, in my experience, those Restraining Order applications are often based on incidents that do not involve any physical domestic violence and are often used as a vehicle to diffuse a difficult and potentially dangerous situation. Once the underlying problem is addressed, the Restraining Order is often resolved via a peaceful contact Order or dismissed outright.
Once the new law takes effect in criminal Court, it will be interesting to see how many Family law cases containing an application for a permanent Restraining Order actually proceed to a contested hearing when a companion criminal case exists. Although there are some important reasons to have a Family Court Judge “hear" the allegations of domestic violence (custody of children or permanent spousal support, for example), in most cases, the issuance of the Family Court Restraining Order would serve no legitimate purpose if a criminal Court Restraining Order exists.
The information and opinions expressed above are not intended to be relied upon as legal advice, or to establish an attorney/client relationship. If you are involved in a Family Law matter, you should seek competent counsel.
Divorce / Separation Lawyer