Restraining Orders and Domestic Violence

Standard Family Law Restraining Orders or ATRO’s

Most people when they file for divorce or dissolve a domestic partnership, do not read the “Summons” which is one of the initial documents that is filed and served on the opposing party.  While most parties are concerned with the information on the Petition, it is the Summons that contains some of the most important information and needs to be read and understood clearly.  The Summons contains the Standard Family Law Restraining Orders or “ATRO’s” as they are commonly referred to by attorneys and judges and are orders that have great significance and should not be ignored or violated.

The ATRO’s are located on Page 2 of the Summons and apply to any relationship status proceeding such as a dissolution (divorce), legal separation, nullity, paternity and domestic partnership.  They are automatic and go into effect immediately against the Petitioner upon the filing of the Petition and against the Respondent when he or she is served with the Petition.  Although the ATRO’s are automatic, they can be modified by stipulation or court order.  There are four Standard Family Law Restraining Orders that will be discussed further below.

Removing Child From the State

ATRO #1:  Neither party may remove the minor child or children from the state without prior written consent of the opposing party or court order.  Violation of this Standard Family Law Restraining Order can be punishable as a felony so it is important to take this very seriously.  However, if the Petition is filed after the child has been removed from the state, there is no violation.  Also, a court may allow a child to remain out of the state if it is not in the child’s best interest to return.  An example could be if the child and parent are victims of domestic violence by the other parent and leave the state as a result of the domestic violence.  Although there are exceptions, it is always best to be cautious and seek permission from the opposing party or a court order.  If your spouse says it is ok for you and your child to leave the state after the Petition has been filed, make sure it is in writing.  A stipulation would be the best but at the very least obtain confirmation in an email.  If written permission is not obtained, you run the risk of having to return to California with the child.

No Changing Beneficiaries

ATRO #2:  No canceling, cashing, or changing the beneficiaries of any insurance or other coverage.  What this means is that neither party may take a spouse or the children’s names off of any insurance, e.g, medical, dental, auto, or life insurance.  There is always a question of what if the policy has run out, does the spouse have to renew it?  This is difficult to answer and again one should be cautious and renew the policy or seek permission from the court to not renew it.

No Transferring Property

ATRO #3:  No transferring, encumbering, concealing or disposing of any real or personal property without written consent of the party or a court order.  This applies to all types of property:  community, quasi-community and separate property.  Therefore, even if you received $50,000 of inheritance and have it in a money market account, you may not withdraw it all and purchase  a new car.  There are however exceptions.   This does not apply if such transfer or purchase  is done in the usual court of business or for the necessities of life.  For example, if your mortgage is $3000 per month or your property taxes are $7000, you may withdraw money to pay those expenses.  You also may withdraw money in order to pay an attorney.

No Changes to Non-Probate Transfers

ATRO #4:  No changes to non-probate transfers that affects the disposition of property subject to the transfer.  There are exceptions here also.  You may write a will.  You may revoke a trust so long as notice is given and the instrument allows you to do so.  You may also eliminate survivorship interests so long as notice is given.  For example, if real property is held in joint tenancy you can sever the joint tenancy so long as notice is given.

As you can see, the ATRO’s are restrictive and need to be given the utmost attention.  Failure to do so or to follow them, could be very damaging to your case.  The court could remove your child from your custody or sanction you for transferring an asset.  Therefore, it is always advisable to  obtain written permission of the other party or a court order if you believe your action may violate the ATRO’s.

Domestic Violence FAQs

What are the types of domestic violence?

Domestic abuse is not only confined to a marriage situation. It can also occur in a couple who is living together as intimate partners. There are several distinct types of domestic violence, but they all incorporate some or all of these key elements:

• Intimidation
• Control
• Physical injury
• Emotional injury
• Humiliation

It is important to remember that physical abuse is not the only form of domestic violence. The types of domestic violence are:

• Physical abuse – hitting, pushing, punching, slapping, kicking, shoving, restraining, holding, confinement, etc.
• Verbal abuse – threatening, yelling, name-calling, screaming, embarrassing, harassment, criticizing, etc.
• Emotional abuse – possessiveness, isolation, blaming the victim for the abuser’s feelings or actions, telling the victim no one wants them, and the abuser is they are the only one who loves them, etc.
• Sexual abuse – rape (any unwanted sexual contact – even between spouses), forcing the victim to do sex acts like filming a sex act or viewing pornography when they don’t want to, sexual harassment, ridiculing the victim about their sexuality, etc.
• Economic abuse – withholding money and other economic resources; withholding resources like necessary medication, food, clothes, and shelter; exploiting the victim’s resources for their own personal gain; preventing the victim from working or denying them the ability to choose their occupation; etc.
• Spiritual abuse – manipulating the victim using their spiritual or religious beliefs; ridiculing the victim’s spiritual or religious beliefs; preventing the victim from practicing their spiritual or religious beliefs; forcing the children to be raised in a faith that the victim has not agreed to; etc.

In addition to spousal or domestic intimate partner abuse, domestic abuse can also include elder abuse, dependent adult abuse, and child abuse.

Is stalking or cyberstalking domestic abuse?

Stalking or cyberstalking is a domestic abuse. California law defines stalking as:

Any person who willfully, maliciously, and repeatedly follows or willfully and maliciously harasses another person and who makes a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family is guilty of the crime of stalking, punishable by imprisonment in a county jail for not more than one year, or by a fine of not more than one thousand dollars ($1,000), or by both that fine and imprisonment, or by imprisonment in the state prison.

This usually happens once the victim has left the relationship. The abuser may follow the victim, sent numerous email or texts, send notes, send unwanted gifts, track them by GPS, call them on the phone repeatedly, watch them with hidden cameras, suddenly show up at places where the victim is, etc.

What are the signs of domestic violence/abuse?

Domestic abuse does not look the same in every relationship. Sometimes the abuse is obvious because the victim bears the bruises and scars from being hit. Other times, the abuse is more subtle. The scars from emotional abuse are much easier to hide. If you’ve ever asked, “am I in a domestic violence situation?” chances are, the answer is yes. Trust your instincts and seek help if you think you may be a victim. Some signs of abuse include:

• They make you feel afraid or intimidated by the way the act towards you, look at you, or talk to you
• They pressure you to use alcohol or drugs
• They threaten to take away your children or harm them
• They destroy your property
• They take your money away from you or refuse to give you money for things you need
• They pressure you to have sex when you don’t want to
• They prevent you from going to the doctor or seeking medical treatment when you are sick or injured
• They kill your pets
• They don’t allow you to work
• They make you perform sexual acts that make you uncomfortable (emotionally or physically) or that are painful
• They separate you from your family and friends, forbid you from seeing them or try to convince you that they are bad for you, out to get you, want to harm you

What are the domestic violence laws in California?

California law makes several types of domestic violence a crime. When the victim escapes the relationship, they may be able to get a restraining order against the abusive partner. A domestic violence restraining order helps protect the victim from the abuser.

What are the domestic violence sentencing guidelines in California?

Domestic violence charges in California are based on their standard criminal counterparts and can carry stiff penalties that include jail time and fines.