Legal FAQ

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Disclaimer: Great care has been taken to ensure the accuracy and utility of the information provided on this website but no warranty is made, express or implied, and WEAVE does not assume any liability in connection with the use or any result from use of the information contained herein. If you are unsure how some of the legal information on this website applies to you, then you should consult an attorney.

If you do not see your question below, please contact WEAVE’s 24-Hour Support and Information Line.

Can I violate my own restraining order? If I initiate contact with my abuser will my restraining order be void?

No, you have gone to court and requested that your abuser’s actions be restrained, not your own actions. You have requested various orders through the restraining order, including but not limited to, not contacting you, staying 100 yards away from you and moving out of the house. Unless you have been served with restraining order papers that list you as the defendant, there is not a restraining order issued against you and your actions are not restrained. It is very important to seek legal advice before initiating contact with your abuser (except for exchanging your minor children for purposes of court ordered visitation). There is a reason why you needed to get a restraining order, because your physical safety is in jeopardy when you are near this person. Accordingly, you do not want to initiate any contact and place yourself in a position where more abuse may happen. Also, you do not want your abuser to tell the judge in court that you have initiated contact with them. This will send a mixed message to the judge in that you want your abuser to stay away from you but you still want to contact your abuser. The judge may question how dangerous this person is if you are willing to initiate contact with them.

Will the restraining order interfere with my abuser getting a job or renting an apartment/house? Will it affect their credit report?

Most likely, no. A Domestic Violence Restraining Order is a civil protection order. It is not a crime in and of itself to have a restraining order issued against you. The potential for criminal penalties comes when the abuser violates the restraining order. The restraining order does affect the ability to possess or own a firearm. The restraining order will affect their ability to seek employment where it is necessary for them to have a firearm. The restraining order will not affect their ability to rent an apartment/house unless that apartment/house is within 100 yards of your home. The restraining order will not affect your abuser’s credit rating or credit report.

Can my abuser talk to the judge before the hearing and without my being present?

No. The judge will only discuss your case during your scheduled hearing. You will need to be present during your hearing. Prior to the hearing, the abuser may file an Answer to the Domestic Violence Restraining Order. An Answer is the proper way for the abuser/Defendant to tell the Court their side of the story or offer an explanation as to what happened. If an Answer is filed with the Court, a copy must also be served upon you. You have the right to know what the abuser has said, just as you had the abuser had the right to know what you said in your restraining order.

What should I do if my abuser says they have spoken with the judge and they both decided I do not have to appear in court for my hearing?

Go to the hearing anyway. If you do not go to your hearing, the restraining order will be dismissed. Do not believe your abuser when they tell you not to go to the hearing or not to worry because everything is taken care of. You are in control of this situation, not your abuser. You have filed the restraining order application and scheduled a court date. Your abuser does not have the power to cancel the hearing and/or dismiss the case. 

What if my abuser knows the judge personally?

In the extremely unlikely event that your abuser knows the judge personally. If he/she does, that judge will not hear your case. There are strict ethical rules governing judges. One of these rules is that if a judge has a relationship with one of the parties to the case, then the judge must excuse himself (or herself) from the case. In that situation, you would be assigned to another judge.

Is it a good idea for the abuser to pick up the children for visitation from my home?

No. It is not recommended that you exchange the minor children with the abuser at your home. This could give your abuser a potential opportunity to harm you further. It is also not safe for you to go to your abuser’s house to exchange the children. Instead, it is better to choose a neutral location in between both of your homes. You could make the exchange at a fast food restaurant, a shopping center or a law enforcement station. If you are uncomfortable meeting your abuser alone, you can bring a support person with you. If you have current custody orders that require a specific exchange place, you must follow that order until it is changed by a judge. If your current order does not specify a place or you do not have a current order, then you and your abuser may mutually choose a location for the exchange.

May I take our children with me when I leave my abuser?

We understand that keeping your children safe and with you is a priority. Every family’s custody needs are different and we cannot advise anyone it is acceptable to take children with them without information regarding current court actions, custody arrangements, etc. We recommend speaking with your an attorney or attending a free Legal Triage session.

Can I secretly leave the county and take our children with me?

It depends. You should seek legal advice before leaving. If you decide to leave the county, you should contact the District Attorney’s office in the county that you currently live in before leaving. Failure to secure a good cause waiver from the District Attorney’s office may leave you vulnerable to charges of child abduction.

Will a judge grant me custody of our children even though I receive CAL-Works, food stamps or SSI?

It depends. The court does not care that you receive public assistance. The court is interested in each party’s parenting skills. The court is interested in ensuring that the parenting plan is safe and age appropriate for the children.

Will a judge grant me custody of our children even if I work full-time?

It depends. In many families both parents work full-time. The court is interested in each party’s parenting skills. The court is interested in ensuring that the parenting plan is safe and age appropriate for the children.

Am I entitled to a share of our property even if it is all in my abuser’s name?

It depends, if you are married. In California, all property acquired during the marriage by the labors of each spouse is presumed to be community property. Each spouse is entitled to an equal share of the community property when the marriage ends. The court is interested in how the property was acquired and when the property was acquired. The court is not as interested in whose name is on the title. If you want to know how the court may decide if a particular piece of property is separate or community property, consult an attorney.

Am I entitled to a share of our property even if my abuser is the only one who worked outside of the home during our marriage and therefore paid for everything?

It depends. In California, all property acquired during the marriage by the labors of each spouse is presumed to be community property. Each spouse is entitled to an equal share of the community property when the marriage ends. This is true whether both spouses worked outside the home or only one spouse worked outside the home. The court is interested in how the property was acquired and when the property was acquired. The court is not interested in whose job earned the money to pay for the property. If you want to know how the court may decide if a particular piece of property is separate or community property, consult an attorney.    Back to top»

Should I participate in mediation even though I am scared to be in the same room with my abuser?

Yes. You can safely participate in mediation if you and your abuser meet with the mediator at separate times on separate days. Although it may be more useful to meet together, your safety is more important. If you will not be able to fully participate in mediation because your abuser is in the same room with you, then choose to meet with the mediator separately. When you receive the notice regarding mediation, you will be provided with a questionnaire. The questionnaire will give you the opportunity to request for separate mediation. Sometimes the abuser will try to control the mediation session with behavior patterns they used in your relationship. You may feel forced to agree with the abuser to avoid a potentially abusive situation between the two of you in the near future. The only way mediation can work is if both parties are free to fully participate and not be hindered by the other party. It is always a good idea to have any agreement reviewed by an attorney before it becomes a court order, if possible.