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Burden of Proof in California Domestic Violence Restraining Order Cases – In re Marriage of Vasquez and O’Callahan

California law protects victims of domestic violence by allowing them to seek a restraining order against a spouse or family member who has been violent toward the person or threatens their physical safety. A domestic violence restraining order requires the offending spouse or family member to stay away from the victim for a certain time period. In order to get a DVRO, you need to file a petition in court. As a recent ruling from California’s Fourth District Court of Appeals makes clear, you also have to show up at the proceedings and present enough evidence to prove that the restraining order is warranted.

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Wife filed for divorce from Husband in 2013, and she followed soon thereafter with a petition seeking a DVRO. She alleged in the petition that Husband had committed a number of violent acts against her over the years. A court in San Diego held a trial on the petition in early May, and it later continued the proceedings until later that month.

Wife was being cross examined by Husband’s attorney when the proceedings were paused in early May, but she didn’t show up when the proceedings resumed. Wife had asked in the interim to be allowed to appear by telephone, since she was living in Humboldt County at the time. The trial court declined, and it later rejected Wife’s motion to further continue the proceedings. Since she wasn’t there to complete the cross examination, the court also struck Wife’s testimony from the record. The court further found that Wife’s testimony wasn’t credible and said it believed she hadn’t told the truth on the witness stand. It noted that a child services mediator testified that she believed that Wife had sought the restraining order in an attempt to stop Husband from getting custody over the couple’s son. As a result, the court denied the DVRO petition.

Affirming the decision on appeal, the Fourth District said the trial court acted within its discretion in denying Wife’s request to appear by phone, refusing to further continue the hearing, and striking her testimony from the record. The Court said that was particularly true in this case because the trial judge had found Wife’s testimony to be “less than credible” and therefore wanted to observe the cross examination with her in the same room. Wife, as the person seeking the restraining order, bore the burden of proving that the order was warranted under the circumstances. Without her testimony, the Fourth District said there was not enough evidence in the record to support the DVRO request.

Domestic violence is a serious matter that courts look at very closely. If you’re a victim of violence or threats in your home, you should contact an experienced family law attorney as soon as possible. San Jose domestic violence lawyer John S. Yohanan has more than 30 years of experience representing clients in family and restraining order cases. Mr. Yohanan is an accomplished family law attorney who has helped a number of clients resolve a wide variety of marital disputes. Call our office at (408) 297-0700 or contact us online to schedule a consultation.

Related blog posts:

Domestic Violence Restraining Orders in California Divorce Cases – In re Marriage of Walker and Walker

California’s Presumption against Child Custody for Parents Who Commit Domestic Violence – In re Marriage of Fajota

Lakers Divorce Case a Lesson in Spousal Support and Community Property – In re Marriage of Scott