Domestic Violence Restraining Orders in California: No requirement to show probable future abuse.

According to a recent decision by the State’s Court of Appeal, “an affidavit showing past abuse” may be the only requirement for securing a restraining order. A person seeking the restraining order need not additionally prove that there is a probability of future abuse.

Abuse for the purposes of meeting the requirements of a per granted order means intentionally or recklessly causing or attempting to cause bodily injury; sexual assault; the placement of a person in reasonable apprehension of imminent serious bodily injury to that person or to another; or the engagement in behavior such as molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning . . . destroying personal property, contacting –either directly or indirectly—by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other. It should be noted that, in some instances, persistent unwanted phone calls or letters are enough to show abuse.

With this evolving and broader definition of abuse, and with the holding that it is not necessary to prove the probability of future abuse, conc and a restraining order could be issued.

This is not to say that restraining orders will always be granted whenever there is merely a showing of past abuse. In spite of this recent decision, a court could exercise its discretion and decide that a restraining order is not necessary or appropriate given the facts of a case and because future abuse is unlikely. Where the court will apparently get into trouble is if it says that it is prohibited from issuing a restraining order because the moving party did not show the probability of future abuse.

Accordingly, parties seeking restraining orders should always try to establish multiple acts of past abuse in order to credibly argue to the court that without a restraining order, there is a probability of future abuse.

The case that removed the need to establish the probability of future abuse is entitled Nevarez v. Tona. In Nevarez, the trial court granted a restraining order for two years. In the Nevarez case, the Court of Appeal unanimously affirmed (or upheld) the trial court’s order.

The Nevarez case arose out of Santa Clara County, but in California, decisions by the Court of Appeal are binding on trial court judges throughout the state in most instances.

Arlene D. Kock

Author Arlene D. Kock

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