Mutual Restraining Orders
In re Marriage of Ankola involved several restraining orders requested by both spouses and issued by the court against both parties.
The parties were married for a little more than a year. The wife filed a restraining order against her husband and one was granted. The husband filed his own restraining order against the wife the day after the restraining order was issued against him. The wife responded to the husband’s restraining order alleging acts of domestic violence.
The family law judge issued mutual restraining orders and found that both parties committed acts of domestic violence against the other and neither party was acting in self-defense. The husband appealed the second restraining order issued against him.
The Sixth Court of Appeal agreed with the husband stating that Family Code section 6305 requires both parties to file an application for a restraining order before a court can issue mutual restraining orders.
Family Code Section 6305 states. (a) The court shall not issue a mutual order enjoining the parties from specific acts of abuse described in Section 6320 unless both of the following apply:
(1) Both parties personally appear and each party presents written evidence of abuse or domestic violence in an application for relief using a mandatory Judicial Council restraining order application form. For purposes of this paragraph, written evidence of abuse or domestic violence in a responsive pleading does not satisfy the party’s obligation to present written evidence of abuse or domestic violence. By July 1, 2016, the Judicial Council shall modify forms as necessary to provide notice of this information.
(2) The court makes detailed findings of fact indicating that both parties acted as a primary aggressor and that neither party acted primarily in self-defense.
(b) For purposes of subdivision (a), in determining if both parties acted primarily as aggressors, the court shall consider the provisions concerning dominant aggressors set forth in paragraph (3) of subdivision (c) of Section 836 of the Penal Code.
If you need legal advice and are looking for a family law lawyer in Orange County to address a dissolution issue such as restraining orders or any other divorce matter such as legal separation, annulment, custody, child support, spousal support and/or property division, please consider Treviño Law in your divorce attorney search. We are located in Laguna Hills right off Lake Forest exit to both the 405 and 5 freeway.
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