Protective Orders Flashcards
DV is abuse perpetrated against: ______
(1) a spouse or former spouse;
(2) a cohabitant or former cohabitant;
(3) dating or engagement relationship;
(4) a person with whom they share a child;
(5) a child of the party; and
(6) any other person related by consanguinity or affinity within the second degree.
Fam. Code 6211
Just living in the same house alone _____ because the parties sublet different rooms in a house that shared common areas.
does not meet the “cohabitant”
O’Kane v. Irvine (1996) 47 Cal.App.4th 207
Child and stepfather who reside together _____.
does not meet the qualifying relationship
Hauck v. Riehl (2014) 224 Cal.App.4th 695
Long distance relationships qualify as dating relationship so long as court finds an _____.
expectation of affection or desire to have affection
Phillips v. Campbell (2016) 2 Cal.App.5th 844
It was proper to exclude children as protected parties (even when witnessed abuse) where _____.
children were old enough to object to being a protected party,
did object, and
there was no evidence the children were fearful of father
In re C.Q. (2013) 219 Cal.App.4th 355
Improper to list child as protected person where threats made by mother were never _____.
in the presence of the child
In re N.L. (2015) 236 Cal.App.4th 1460
Appropriate to include children as protected parties where they witnessed the abuse more than once and statements by the children _____.
indicated fear
In re Bruno M. (2018) 28 Cal.App.5th 990
Any person may apply including a minor. It shall not _____ because the petitioner has vacated the household to avoid abuse nor does it require a petition for dissolution exists. The time since the most recent act of abuse is ____.
be denied
not, by itself, determinative
Fam. Code 6301
Abuse means (1) intentionally, recklessly, causing or attempting to ______, (2) placing a person in _____ to that person or to another, or (3) engaging in behavior that has or could be enjoined under Family Code 6320.
cause bodily injury, sexual assault
reasonable apprehension of imminent serious bodily injury
Fam. Code 6203
The court may issue DV for stalking, harassing, disturbing the peace, or coercive control. Coercive control may be _____. This may be compelling the other by _____ (including immigration status and reproductive autonomy), or forcing the party to engage in conduct a party has a right to abstain from.
controlling, regulation, or monitoring movements, communications, daily behavior or finances
force, threat of force, or intimidation
Fam. Code 6320
Abuse need not be actual _____.
affliction of physical injury or assault
Marriage of Nadkarni (2009) 173 Cal.App.4th 1483
“Strong language” is _____.
not the basis for a DV order
S.M. v. E.P. (2010) 184 Cal.App.4th 1249
Showing up unexpectedly and yelling from the street, making the victim fearful _____. PC 415 is not the test.
is sufficient
Burquet v. Brumbaugh (2014) 223 Cal.App.4th 1140
Violation of a TRO is a _____.
basis for ordering a permanent restraining order
N.T. v. H.T. (2019) 34 Cal.App.5th 595
Error that court refused to hear evidence about the incidences of abuse _____ and found that physical separation could ____. There is no requirement for _____.
after filing
substitute for a DVRO
corroborating evidence of testimony
Marriage of F.M. & M.M. (2021) 65 Cal.App.5th 105
Seeing abuse of a child is _____
abuse of the parent
Gao v. Xiao (2014) 228 Cal.App.4th 812
Because the court found husband’s dissemination of wife’s text messages and other data was abuse, he did not have ______.
protections of free speech
Marriage of Evilsizor & Sweeney (2015) 237 Cal.App.4th 1416
A single private Facebook post accusing the other of abuse is ____.
not grounds for DV
Curcio v. Pels (2020) 47 Cal.App.5th 1
The restraining order was affirmed where there was considerable evidence of physical abuse and, despite consensual sex post-TRO, the court found _____.
this was part of the cycle of abuse
Marriage of Fregoso and Hernandez (2016) 5 Cal.App.5th 698
____ is a defense to a claim of abuse and is not the primary aggressor.
Self defense
Marriage of G. (2017) 11 Cal.App.5th 773
The respondent shall be entitled, as a matter of course, to one continuance for a reasonable period, ____.
to respond to the petition
Fam. Code 245(a)
The court cannot deny the continuance request if _____.
first continuance
Ross v. Figueroa (2006) 139 Cal.App.4th 856
Not entitled to a continuance if ____.
a response is made
Goals for Autism v. Rojas (2021) 65 Cal.App.5th 1041
The court may grant a request for continuance on ____.
good cause
Fam. Code 245(b)
Good cause for continuance of DV includes ____.
serious illness or unforeseen circumstances
J.M. v. W.T. (2020) 46 Cal.App.5th 1136
Court must inform the parties of the order and limitations on ____.
possession of firearms
Fam. Code 6304
The court must ensure that a search of respondent for prior ____, misdemeanors involving DV or other violence, warrants, probation/parole, registered firearms, or prior restraining orders.
criminal convictions for violent felony or serious felony
Fam. Code 6306
The court _____ the ownership of firearms and ammunition.
must consider
Fam. Code 6322.5
Restrained parties may not ____
possess or buy guns or ammunition.
Fam. Code 6389
Court cannot strike ____.
firearms restrictions
Ritchie v. Konrad (2004) 115 Cal.App.4th 1275
Law enforcement is obligated to _____ with a restraining order.
serve a respondent
Fam. Code 6383
If after diligent effort, petitioner is unable to effectuate service and reason to believe respondent is evading service, the court may ______.
specify another form of service
CCP 527.6
Court should inform witnesses of the risk of ____.
privilege for self incrimination
People v. Berry (1991) 230 Cal.App.3d 1449
By testifying, the witness _____ the privilege against self incrimination.
waives
Brown v. U.S. (1958) 356 U.S. 148
Victim of DV is entitled to have a ____ present at the hearing.
support person
Fam. Code 6303
Must set hearing within ____ unless extended for good cause to ___.
21 days
25 days
Fam. Code 242
There is no requirement for an order of protection to seek ____ under a DV action.
child support
Moore v. Bedard (2013) 213 Cal.App.4th 1206
The court has jurisdiction to issue spousal support under a ____.
DV action
Marriage of J.Q. & T.B. (2014) 223 Cal.App.4th 687
A victim is not held to a high standard of pleading claims. They may raise claims for the first time at the hearing so long as _____.
there is adequate notice of claims of abuse
Marriage of Davila & Mejia (2018) 29 Cal.App.5th 220
Protected person may register an order from _____.
another state
Fam. Code 6304
An ex parte EPO may be issued where a law enforcement officer asserts reasonable grounds to believe that (1) person is in ______ of DV, (2) that a ______, (3) that a child is in immediate and present danger of being ____ by a parent or relative, or (4) that an elder or dependent adult is in immediate and present danger of abuse.
immediate and present danger
child is in immediate and present danger of abuse by a family or household member
abducted
Fam. Code 6250
Issued through law enforcement and expires earliest of 5th court day after issuance or 7th calendar day.
EPO
Protective order means order enjoining specific _____, excluding a person _____, and order enjoining other specified behavior.
acts of abuse
from a dwelling
Fam. Code 6218
The court may issue an ex parte order enjoining a party from molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, credibly impersonating, falsely personating, harassing, telephoning, destroying personal property, contacting, either _____, or disturbing the peace of the other, and may order possession of animals.
directly or indirectly
Fam. Code 6320
The court may issue an ex parte order excluding a party from the family dwelling regardless of who is on title if _____.
(1) the party staying in the dwelling has right under color of law to possession of premises,
(2) party excluded has assaulted or threatened to assault the other party or any other person under the care, custody, and control of the other party, or any minor child,
(3) that physical or emotional harm would otherwise result to the other party or person under their care, or any minor child
Fam. Code 6321
The court may issue ex parte orders enjoining a party from specified behavior that the court _____.
determines is necessary
Fam. Code 6322
Within DV, court can also order _______, temporary use and possession of property, order respondent to attend batterer intervention program, etc.
custody,
visitation,
child support,
spousal support,
restitution,
attorney’s fees
In making a determination of the best interests of the child and in order to limit the child’s exposure to potential domestic violence and to ensure the safety of all family members, the court may award temporary _______ to the other party pending the establishment of a parent and child relationship between the child and the other party.
sole legal and physical custody and order of no visitation
Fam. Code 6323
For custody orders, the court must consider whether failure to issue orders will _____. Any order must assess the immediate risk of harm.
jeopardize safety of the victim or child
Marriage of Slayton (2001) 86 Cal.App.4th 653
The court must make reasonable inquiry into facts related to _____.
parentage
Gonzalez v. Munoz (2007) 156 Cal.App.4th 413
There is no requirement to make a finding of _____ when issuing a modification of a custody order in a DV proceeding.
change of circumstances
Keith R. v. Superior Court (H.R.) (2009) 174 Cal.App.4th 1047
Conflicting law that states that a change of circumstances is ______.
necessary when modifying custody order after DV hearing
Christina L. v. Chauncey B. (2014) 229 Cal.App.4th 731
The court may order temporary use, ______ and the payment of any liens or encumbrances coming due during the period the order is in effect.
possession, and control of real or personal property
Fam. Code 6324
Issuance of custody award alone is not ______ for residence exclusion.
sufficient basis
Marriage of Parker (1981) 118 Cal.App.3d 291
The court may issue an ex parte order restaining a married person from specified acts in relation to _____.
property
Fam. Code 6325
The court shall consider whether failure to make any of the orders after hearing (extending TRO orders) may _______ for whom the custody or visitation or support is sought.
jeopardize the safety of the petitioner and the children
Fam. Code 6340
The court in a DVPA proceeding may issue an order for child support only if the parties are _______ or the respondent is the ______ of the child, as defined in section 7611, and the child is in the custody of the petitioner.
married and no other child support order exists
presumed natural father
Fam. Code 6341
Declaration prohibiting _____ restraining orders.
non-CLETS
Fam. Code 6380
The obligation to register the order in CLETS is ______
mandatory not discretionary.
Marriage of Reichental (2021) 73 Cal.App.5th 396
The court shall not issue mutual orders unless both parties personally appear, each person presents evidence of abuse, ______.
both parties acted as primary aggressors, and
neither party acted primarily in self defense
Fam. Code 6305
The court cannot issue mutual restraining orders by _____ without meeting the proper findings in 6305.
“agreement”
Monterroso v. Moran (2006) 135 Cal.App.4th 732
The court cannot order mutual restraining orders without separate ____.
applications
J.J. v. M.F. (2014) 223 Cal.App.4th 968
Even if competing DV’s are based upon _____, the court must still make the 6305 findings.
different events
Melissa G. v. Raymond M. (2018) 27 Cal.App.5th 360
Affirmed mutual restraining order where court found that ______ at different times.
both parties were primary aggressors
Marriage of Everard (2020) 47 Cal.App.5th 109
In determining if both parties are primary aggressors the court must consider the four part test of PC 836(c)(3): _____
(1) protect victims from continuing abuse;
(2) threats creating fear of physical injury;
(3) history of DV between the parties; and
(4) whether either person involved acted in self defense.
K.L. v. R.H. 92021) 70 Cal.App.5th 965
The court is not required to provide a thorough 6305 finding if it does not choose to issue _____.
mutual restraining orders
Salmon v. Salmon (2022) 85 Cal.App.5th 1047
Judgment for dissolution or a parentage action may include a _____
protective order.
Fam. Code 6360
The DV may be renewed, upon request, for five years or more, or permanently, at the discretion of the court, without ____ since the issuance of the original order. The request may be brought within ____ of the expiration of the original order.
a showing of further abuse
3 months
Fam. Code 6345
If a restrained party objects to renewal, the test is whether there is ______.
imminent and present danger of reasonable fear of future abusive conduct
Ritchie v. Konrad (2004) 115 Cal.App.4th 1275
Contact through third parties is _____ based upon history of abuse.
sufficient for the basis of renewal
Avalos v. Perez (2011) 196 Cal.App.4th 773
Reasonable apprehension is sufficient but ______ alone is not sufficient. The history of abuse is an important factor.
unsubstantiated subjective fear
Lister v. Bowen (2013) 215 Cal.app4th 319
The court must consider the nature and extent of _____ in determining reasonableness of apprehension.
past abuse
Cueto v. Dozier (2015) 241 Cal.App.4th 550
Repeated phone calls and text messages constitute continuing abuse. A party’s _____ of an existing restraining order supports renewal. Evidence of abuse on the _____ is relevant if evidence of abuse makes a party more fearful.
knowing violation
parties’ children
Perez v. Torres-Hernandez (2016) 1 Cal.App.5th 389
The court does not have to take every allegation made in the original order as true in determining whether a renewal should be granted. The court found that ______ does not apply because the standard and case are different.
collateral estoppel
Marriage of Martindale v. Ochoa (2018) 30 Cal.App.5th 54
Renewals under 6345 are not limited to restraining orders originating ______.
in family court (i.e. restraining order issued in juvenile court)
Garcia v. Escobar (2017) 17 Cal.app.5th 267
Fear of physical abuse is not required. It is an objective standard of reasonable apprehension of _____.
probability of future abuse
Rybolt v. Riley (2018) 20 Cal.App.5th 864
Protective orders are enforceable anywhere ____.
in CA
Fam. Code 6381
Law enforcement shall have secured access to existing orders in ______.
CLETS/CRPOS
Fam. Code 6382
Criminal protective orders ______.
trump DV orders
Fam. Code 6383
Court cannot deny a DV request just because of an existing _____.
criminal protective order
Lugo v. Corona (2019) 35 Cal.App.5th 865
Restrained party may request ______ prior to expiration with notice by personal service.
termination or modification
Fam. Code 6345
Dissolving a restraining order requires a ______ based upon dissolving an injunction under CCP 533.
substantial showing
Loeffler v. Medina (2009) 174 Cal.App.4th 1495
Termination of injunction requires a 3 part test: ____
(1) facts have changed;
(2) law has changed; or
(3) ends of justice are served
CCP 553
_______, that award of sole or joint legal custody to the perpetrator of domestic violence within five years is detrimental to the best interest of the child.
Rebuttable presumption, by preponderance of the evidence
Fam. Code 3044(a)
The court must be satisfied that an award of sole or joint custody is in the best interest of the child, but cannot rely on _____.
preference for frequent and continuing contact
Fam. Code 3044(b)(1)
Other factors include: (1) successfully completed _____ if court deems appropriate, (2) successfully completed alcohol or ______ if court deems appropriate, (3) successfully completed a parenting class if the court deems appropriate, (4) if on probation or parole, and has not complied with _____, (5) has violated a protective order, (6) further acts of domestic violence, (7) is in possession of a firearm in violation of 6389.
batterer’s treatment program
drug abuse counseling
terms and conditions of probation or parole
Fam. Code 3044(b)(2)
Perpetrated domestic violence for 3044 means a finding by a court of: (1) intentionally or recklessly causing or attempting to cause _____, (2) causing reasonable apprehension of imminent serious bodily injury, (3) threatening, striking, harrassing, destroying personal property, or ______, (4) conviction or no contest plea within past 5 years for DV, or (5) finding by any other court of DV whether or not it heard custody proceedings.
bodily injury, sexual assault
disturbing the peace
Fam. Code 3044(c)
The court cannot solely rely on conclusions reached in ______ of family court services.
custody evaluations or recommendations
Fam. Code 3044(e)
The doctrine of implied findings does not apply to 3044 because 3044 is automatic and does not require a _____. The obligations being as soon as the court makes a finding of DV (regardless of issuing a restraining order or not).
request for statement of decision
Abdelqader v. Abraham (2022) 76 Cal.App.5th 186
When an order of protection is issued even _____, the court must apply 3044 and the court must make express findings under 3044 concerning the impact of DV when the trial court makes a custody order.
by another state
Ellis v. Lyons (2016) 2 Cal.App.5th 404
3044 is a presumption and the court cannot place the _____ to show the impact of DV.
burden of proof on the non-offending party
Christina L. v. Chauncey B. (2014) 229 Cal.App.4th 731
The court may not award _____ after finding of DV unless the offending party rebuts the presumption.
joint custody
Marriage of Fajota (2014) 240 Cal.App.4th 1487
3044 presumption is mandatory. The court cannot leave ______ without first determining whether respondent can overcome 3044.
same visitation orders without modification
City and County of San Francisco v. H.H. (A.M.) (2022) 76 Cal.App.5th 531
The court cannot bypass 3044 by awarding sole custody but leaving _____.
50/50 visitation in place
Celia S. v. Hugo H. (2016) 3 Cal.App.5th 655
It was _____ for the court to award joint custody before father completed counseling and because of the court’s concern over cost of litigation.
error
Jason P. v. Danielle S. II (2017) 9 Cal.app.5th 1000
If court awards joint custody after a DV finding, it must _____ or in writing by specifically mentioning each 3044 factor.
state its reasons for ruling on the record
Jaime G. v. H.L. (2018) 25 Cal.App.5th 794
