Family Court Domestic Violence Restraining Orders
June 9, 2020
Whether or not the alleged victim contacts the police or is physically injured, the accuser has the right to file a petition for a Domestic Violence Restraining Order (DVRO) in Family Court. The person seeking the restraining order is called the “Petitioner” or “Protected Party.” The person the order is sought against is called the “Respondent” or “Restrained Party.”
A DVRO Petition Versus a Criminal Charge of Domestic Violence
There are several differences between a DVRO Petition and a criminal charge of domestic violence. These differences include:
There is no requirement to contact the police or for a criminal charge to be prosecuted in court, but the Petitioner can also apply for a DVRO even if there is also a criminal case.
The Petitioner files the case in court. The police, district attorney, or city attorney do not participate in the case. There is no arrest involved, and except for contempt of court cases, there is no possibility of criminal conviction or imposition of a jail or prison sentence.
Both partners in the domestic relationship can potentially file DVROs against one another. When this happens, the two DVROs are usually heard together in a single court hearing.
Any person over the age of 12 years who is a victim of domestic violence can file a DVRO case, without being required to have a legal guardian appointed.
The Petitioner only needs to give 4 business hours of notice to the Respondent or can file it without giving any notice if there is a risk of further harm occurring if advance notice is given. When the case is initially filed, the court can issue a Temporary Restraining Order that will require the Respondent to immediately move out of a shared residence, have no contact with the Petitioner.
The court has the discretion to consider hearsay evidence.
The standard of proof is “Preponderance of the Evidence,” as opposed to the higher “Beyond a Reasonable Doubt” standard required in a criminal case. The preponderance of the evidence is a determination of whether the allegation in the case is “more likely true than not true.” This can also be expressed as to whether the evidence for or against the alleged domestic violence is more convincing than the evidence pointing the other way. The evidence on one side need only be very slightly more convincing for that side to prevail.
The Petitioner can either hire a lawyer privately or represent themselves.
The accused person is not entitled to a public defender. The Respondent can either hire a lawyer privately or represent themselves.
The winning party at the hearing can make a request for the court to order the other party to pay back their attorney fees.
Unlike a criminal case, a DVRO can be granted based on conduct that only causes emotional harm.
The court must set a hearing on whether or not to issue a permanent restraining order within 21 days of the filing of the case, which can be extended for good cause. When the time limit for the case is extended, any temporary restraining order usually remains in effect.
Whether you are served with a DVRO, or you are the person seeking one, you will have to prove your side of the case in court to win in court. If you represent yourself, you are required to understand all of the relevant laws, all court procedures, evidence rules, and legal strategies. On either side of a DVRO case, you should strongly consider hiring an experienced lawyer.
Domestic Violence Title IX cases
Title IX prohibits domestic violence against students in K-12 public schools and all colleges and universities. If a student reports domestic violence to their school’s Title IX coordinator, the school is required to investigate the situation and determine whether or not the accusation is substantiated. If the school determines that the accusation was substantiated, the school is required to impose a sanction (a punishment or consequence) against the perpetrator of domestic violence (who is called the Respondent) which can range in seriousness from a warning all the way up to suspension or expulsion.
A Title IX domestic violence case has some similarities and differences from both criminal and family court DVRO cases:
The student who accuses someone of domestic violence (known as the Complainant) is not required to contact law enforcement or bring a DVRO case, but they have the right to do so if they wish.
The Complainant can bring a complaint against another student, a faculty or staff member of the school, or sometimes even outside persons who have contact with the school.
Many schools and universities will investigate Title IX cases against students even when the Complainant is not a student.
If the school or university deems it necessary, it can impose an interim measure prior to investigating the alleged violations. Nearly all schools impose a “No Contact Order” requiring the two students
A school or university uses the “Preponderance of the Evidence” standard, meaning that the investigator or fact-finding panel will determine whether or not the evidence supporting the accusation indicates that the allegation is more likely true than not true.
The school or university may investigate complaints of domestic violence where the alleged conduct took place off-campus, after hours, or during time periods when school was in recess.
The school’s rules will determine what evidence is to be considered and with some exceptions, what procedures will be followed. Formal criminal and civil court procedures, definitions, and rules of evidence do not apply.
The school is required to offer a hearing where the parties can submit questions to be asked to the other party.
If the school or university determines that the allegations of domestic violence were substantiated to a preponderance of the evidence, they are required to impose a sanction or consequence on the accused student. Depending on the school’s judgment of the severity of the conduct or the extent that the conduct causes a hostile educational, living, or social environment to the complainant or other students, the sanction can be as severe as suspension or expulsion.
The school is not required to offer any appeals procedure, but if it does allow an appeal, appeals are usually only allowed on limited grounds, such as serious procedural errors that changed the outcome of the case, or new evidence that was only discovered shortly after the decision was made.
Neither the Complainant nor the Respondent is required to have a lawyer or advisor, but your school or university is required to allow each party to hire an advisor of their choosing, who may be a licensed attorney or not.
A Title IX case for domestic violence is extremely serious for both students. A finding that domestic violence was substantiated can potentially prevent a student from transferring to another college, from being admitted to graduate schools, from certain kinds of employment, including the military, or from obtaining licenses to practice professions, such as medicine, law, and teaching. For either student, winning the case involves understanding how to present your evidence, how to answer questions effectively in an interview or hearing, how to gather evidence and potential witnesses to help prove your case, and developing a successful case strategy.
If you have a domestic violence case, whether it is a criminal charge, a DVRO case, or a Title IX case, I can use my experience to help you effectively present your case, protect your rights, and have the best chance of winning your case. Please contact me to discuss how I can help.