Domestic Violence Appeal
A California domestic violence restraining order appeal first begins with a person who is entitled to obtain a restraining order. A person who wishes to obtain a domestic violence restraining order must first meet basic preconditions to do so. Only certain relationships are entitled to protection under the Domestic Violence Prevention Act in California (DVPA). An alleged domestic violence victim is a “protected person” under the DVPA and thus entitled to the benefit of a DVPA order only if he or she fits one of the descriptions contained in Family Code section 6211. “Domestic violence” is abuse perpetrated against any of the following persons:
(a) A spouse or former spouse.
(b) A cohabitant or former cohabitant
(c) There existed or exists a dating relationship
(d) A person with whom the respondent has had a child, where the presumption applies that the male parent is the father of the child
(e) A child of a party or a child who is the subject of an action under the Uniform Parentage Act, where the presumption applies that the male parent is the father of the child to be protected.
(f) Any other person related by consanguinity or affinity who is a blood relative within the second degree.
[minor changes were made to the above provisions to enhance readability]
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When there exists a relationship described above, the DVPA applies. The DVPA’s purpose is to prevent acts of domestic violence, abuse, and sexual abuse and to provide for a separation of the persons involved in the domestic violence for a period of time sufficient the parties to seek a resolution to the causes of violence.
A trial court may issue a restraining order upon “reasonable proof of a past act or acts of abuse.” “Abuse” is defined for purposes of the act as any of the following:
(1) To intentionally or recklessly cause or attempt to cause bodily injury.
(2) Sexual assault.
(3) To place a person in reasonable apprehension of imminent serious bodily injury to that person or to another.
(4) To engage in any behavior that has been or could be enjoined pursuant to Section 6320.
(b) Abuse is not limited to the actual infliction of physical injury or assault.
In addition however, the statutory definition reflects that “abuse” includes, among other things, behavior that has been or could be enjoined pursuant to Section 6320. Section 6320 includes behaviors such as making threats and “disturbing the peace of the other party.” Disturbing the peace of the other party means conduct that destroy the mental or emotional calm of the other party.
A domestic violence restraining order appeal generally arises when the court determines a person did or did not suffer abuse as outlined by case law and statutory authorities. The appealing party could either be the person who sought the restraining order or the restrained person. As a San Diego, California based appellate attorney, I undertake as one of the first steps in the appellate process a determination of what the potential issues are on appeal. The trial court fashions order all the time that to you, I, or even the Court of Appeal consider mistaken. However, these mistaken decision do not produce a wave of domestic violence restraining order reversals. With appellate principles in mind I evaluate the likelihood the issues I have identified will merit reversal. In the event I determine the case has merit I write a persuasive domestic violence restraining order appellate brief that avoids the traps that trip up lesser trained appellate counsel. If you wish to appeal a domestic violence restraining order or need to defend against an appeal, feel free to contact me so that I can go over your options with you.
Viewing the presentations, articles, other content, or contacting me/you through my web site does not establish an attorney client relationship. I will not file a notice of appeal nor calculate the time in which a notice of appeal must be filed by until I have received a signed retainer agreement. Warning, the time from which to file a notice of appeal is statutory. The time in which you have to appeal may pass between when you first contact me and when an attorney client relationship is formed upon when I receive a signed retainer agreement . Until a retainer agreement is signed and received by me, it is YOUR responsibility to insure your appeal is filed within the statutory period. The articles on this website are not legal advice and should not be used in lieu of an attorney. The accuracy of articles and information on this site cannot be relied upon.