Law Offices of Johnson & Johnson

Domestic Violence And The COVID-19 Pandemic – Due Process

When there are Domestic Violence Retraining Order (DVRO) filings, there can be a multitude of victims, including those are falsely accused of perpetrating domestic violence. The unfortunate truth is that people are not always honest when they make such filings, even though that is what the law requires and mandates (i.e. declaration under penalty of perjury). In practice, we have seen that parties have filed DVROs to win a “first to court” battle with a spouse and to gain leverage financially or with child custody matters.

“First to Court” means just that, essentially the first party that comes to Court with a filing. When a party files a civil or family law request in Court, there is a general supposition that this party is “right” because they were the first party to seek relief. While this shouldn’t be the case, it tends to be.

Why would a party seek to falsely seek a DVRO versus making a regular filing in family court? The answer is time. Family law proceedings can be very involved, long and tedious. Family law proceedings take a substantial amount of time to even initiate. Hence, what is the fastest way someone in a domestic relationship can get to Court and deal with issues such as wanting to just get the hated spouse out of the house, get control of the finances and child custody? Unfortunately the answer to this is filing an application for DVRO. There are cases where allegations are manipulated or fabricated so that a party can take advantage of getting a home (kicking the other partner out), getting sole legal/physical custody of a child (or children), and getting access to items within the home or accessing finances while hindering their partner’s ability to so.

While the law requires that all declarations in support of an application for DVRO be signed “under penalty of perjury” this is not always the case. This begs the question, if you are wrongly accused, what are your due process rights?

When a party seeks to file an application for DVRO, they can actually seek two protective orders simultaneously. A Temporary Restraining Order (TRO) and a DVRO.

A Temporary Restraining Order is an order a party can receive without hearing or with little or no notice to another party. Family Code § 6300 subd. (b) specifically states that a request for a temporary restraining order cannot be denied solely because it was not served upon the other party. Hence there are little due process protections in this regard. However, if you are served a request for temporary restraining order prior to its issuance you have the right to respond in writing. Furthermore, if the allegations made by the petitioner are insufficient as a matter of law, the Court can deny issuing a Temporary Restraining Order pending a Court Hearing.

Unlike a Temporary Restraining Order, a Domestic Violence Restraining Order requires notice of hearing. (See Fam. Code § 6302). Notice of hearing must include information that failure to show up for the hearing could lead to an issuance of a restraining order for up to five years. You have to act immediately and show up at the hearing. It is very difficult to seek relief from a Restraining Order issued after proper notice occurs if you don’t show up to your hearing.

After you received paperwork (remember you have to be served) there are a litany of actions you can take and it depends on the circumstances. Each case is a living and breathing creature. Are you potentially facing criminal charges based on a false police report? Are you facing an investigation by CPS due to a false allegations? These are all things you must take into consideration and weigh prior to taking further action in a DVRO matter. The reason these considerations are important is because if you choose to file a response to an application for DVRO (you can elect not to) you are required to use form DV-120. At the bottom of the DV-120 form, right above where you date and sign it states, “I declare under penalty of perjury under the laws of the State of California that the information above is true and correct.” Hence, not only do you have to be crystal clear if you file a responsive declaration, but you are also now putting your own personal statements on paper which can be used against you not only in the DVRO proceeding, but in collateral legal proceedings such as criminal proceedings or juvenile proceedings.

Furthermore, once you sign that document and file it, you have paved the way for your case. There are no “take backs” when you have signed a document under penalty of perjury, things you may have declared in the heat of the moment. We know that if you are involved in this type of legal proceeding and you have been falsely and unfairly accused, you are have already undergone an immense amount of emotional stress. Our job as your attorney is to (1) explain the process to you (2) explain what the legal landscape is looking like for you (including whether you are at risk of the cops or CPS knocking on your door, and (3) develop a roadmap for you. Our goal and our job in these proceedings are to take the burden, fear, and stress off of your shoulders and put it on ours.

You have rights. You need to know what they are and how to exercise them. You have a right to file responsive paperwork, as detailed above. You have a right to a hearing. You have the right to present evidence and witnesses. You have a right to fight wrongful allegations.

Beyond a restraining order issuing against you, and criminal and juvenile collateral consequences, there are also collateral family law consequences. This is the reason DVRO proceedings are so dangerous and highly charged proceedings. The Family Code states that if you have perpetrated domestic violence within the past five years against another party seeking custody (i.e. the Petitioner), your child, or your child’s sibling, “there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child…”n (See Fam. Code § 3044).

You did not read that wrong. If you have a DVRO issued against you, Family Code § 3044 is triggered and there is a presumption (however it is rebuttable) that an award of sole or joint physical legal custody to you is detrimental to your child or children. This means the new status quo moving forward, regardless of what your custodial arrangement was. The burden is automatically now on you to show that you having joint legal or physical custody is in the best interests of your child or children.

It doesn’t end there. If a domestic violence restraining order is issued against you, the order will then be entered into the CLETS system. CLETS stands for California Law Enforcement Telecommunication System. This means that anytime law enforcement comes into contact with you and runs your information (any law enforcement in the state of California) they will see that you have a restraining order. Furthermore, this may come up on a background check, which could adversely affect your livelihood. This is more likely to affect you when you have a job that requires government clearances and security clearances where more in depth background checks occur. This can also affect you if you have a professional license or certification and have a duty to report to your licensing or certification board.

The bottom line is that stakes are high if you are on the wrong end of a DVRO application. While having an experiences attorney on your side does not guarantee an outcome (and don’t trust anyone who says otherwise), we will help guide you and navigate you through the process. We will constantly analyze and re-analyze your case. We will help you identify and deal with collateral consequences, things that you wouldn’t even normally think of. At the Law Offices of Johnson & Johnson we have experiences attorneys that have defended against Domestic Violence Restraining Orders.

We also have nearly 50 years of combined experience practicing Juvenile and Criminal law, types of law that may well come up during the DVRO process. We are experienced, knowledgeable, and dedicated to our clients. If you received DVRO paperwork, call us immediately for a free consultation so that we may assist you.