It is not uncommon in domestic violence cases for our client to feel squeezed by a criminal case and a civil restraining order for domestic violence, brought by the alleged victim in the criminal case. The client may also face a family law case for custody of any children the alleged victim and he have.
What should the client do in response? Our answer is to tell the client to recognize the varying burdens of proof in each case and try to resolve the case with the highest or toughest burden of proof first because it is always anticipated that the alleged victim will want to loudly brag about success in another court, as if her credibility has been proven already.
In a criminal case, the burden of proof is beyond a reasonable doubt, the highest burden of proof.
For a civil court considering a civil domestic violence restraining order, the burden is very low. The alleged victim must establish “reasonable proof of a past act or acts of abuse.” Cal. Family Code § 6300. We find that allegations of abuse are viewed liberally and orders are granted readily when the civil judge knows that there is a pending criminal case, as this fact suggests the police or the district attorney has confidence a crime will be proven beyond a reasonable doubt.
For this reason, we truly resent such “piggy-backing” and recommend that the client fight the criminal case with full focus first. After all, if the prosecutor dismisses the case or permits a plea bargain to a lesser charge, the alleged victim cannot influence the civil judge as well.
To allow the criminal case to proceed first, we strongly suggest that the client request a continuance in the civil restraining order matter. California Code of Civil Procedure § 527(d)(4) states: “The opposing party is entitled to one continuance for a reasonable period of not less than 15 days or any shorter period requested by the opposing party, to enable the opposing party to meet the application for a preliminary injunction. If the opposing party obtains a continuance under this paragraph, the temporary restraining order shall remain in effect until the date of the continued hearing.” It is best to request this continuance first on this basis.
When the client returns to court, it is best to ask for a stay of the restraining order case while a criminal case is pending. The authority for the civil court to do this is Pacers, Inc. v. Superior Court
(1984) 162 Cal. App.3d 686.
If the civil judge refuses to implement such a stay, the client should recognize the problems of testifying in civil court on the alleged victim’s restraining order. Anything and everything the client testifies can be used to help the prosecutor prosecute the criminal case more effectively. For this reason, the client should assert his or her Fifth Amendment Right against self-incrimination in the civil restraining order case. The judge must respect this constitutional right and not take an adverse inference by such an exercise.
While we have told this to many clients, it is not uncommon for our client to confidently say that she or he did nothing wrong and will show it in the civil court. We caution the client against doing this because a judge can ask questions of the client and the judge may make an incorrect ruling, which the alleged victim can then parade to the prosecutor’s office to help the prosecutor.
Such a situation is preventable and avoidable if the client understands his or her rights. There is no obligation to testify in a civil restraining order hearing. It is best to slow things down and handle things methodically and carefully, beginning with the criminal case first.
For more information about the issues in this article, click on the following articles:
- What Punishment Do I Face For Domestic Violence?
- Federal Lifetime Ban on Owning a Firearm Applies After Misdemeanor Conviction for Domestic Violence under California Law.
- Criminal Protective Order in Domestic Violence Case Is Improper When it Bars Father From Contacting His Kids, Who Were Not Victims in the Case.