Can a Restraining Order Be Issued Without a History of Physical Abuse?

By | November 13, 2017

Those who experience emotional abuse in a marriage can feel humiliated, powerless, and trapped. Though it may not leave physical scars, the psychic pain can resonate for years after a toxic marriage has ended. Meanwhile, intimidation and threats of physical violence can leave an emotionally-abused spouse paralyzed with fear.

This fear often has the intended effect hamstringing the abused spouse who seeks a divorce leading them to second guess their choices when dealing with the family legal system.

Family attorneys who represent clients in these types of situations are often asked if it is possible to request a domestic violence restraining order when there isn’t a history of physical violence.

Restraining Order

While family law is complex, and each situation is different, there are cases primarily involving emotional abuse when the court will issue a protective order. Continue reading to learn a little about the legal reasoning behind this issue. If you have questions about your own family law situation, contact a family attorney for more information.

What the Law Says

The specific law relevant to this article is found in the Domestic Violence Protection Act (DVPA), which is contained in Family Code. The law allows the court to issue protective orders to ensure separation between persons where a recurrence of domestic violence exists. Section 6251 of the law states that a judicial officer may issue a protective order if reasonable grounds have been asserted to believe that an immediate and present danger of domestic violence exists, and that an emergency protective order is necessary to prevent the occurrence or recurrence of domestic violence, child abduction, or abuse of an elder.

Continue reading to learn how some California courts have factored emotional abuse into their decisions regarding protective orders.

An Example from a High-Profile Case

In 2015, the California Appeals Court for the Fourth District ruled on a case involving a man named Randy Menjivar and a woman named Beverly Ann Rodriguez who had been romantically involved since June 2013. The couple maintained their relationship through February 2014.

During the relationship, Menjivar had been physically abusive to Rodriguez, and engaged in behavior that included hair pulling, kicking, slapping and punching. In addition, Menjivar also engaged in psychological abuse that included constant monitoring of Rodriguez’s activities when she was not with Menjivar. On one occasion, he sliced the throat of Rodriguez’s teddy bear saying that’s what he wanted to do to her.

In July 2014, a lower court granted Rodriguez a temporary restraining order. But after the couple’s child was born in September, a hearing was held to determine if the order would remain in effect. Rodriguez and her mother were the sole witnesses in the hearing, and the court denied the request, dissolving the temporary restraining order. The court argued (among other things) that Rodriguez’s testimony regarding her ex’s mental abuse was irrelevant.  In the ruling, the judge stated, “If you happen to be controlling, I don’t think that’s a good thing to do. It’s unpleasant. But it’s not something that this court is going to sanction.”

Rodriguez appealed the decision.

Upon reviewing the lower court’s ruling, the appellate court argued that the lower court had erred on this point, countering that mental abuse is in fact relevant in a DVPA proceeding.

The appeals court referred to several earlier cases in which non-physical abuse led to reversals of lower court rulings. These earlier cases involved downloading and disseminating text messages as well as a person being subject to ongoing, unwanted electronic contact. Even in the absence of physical abuse, these behaviors were held sufficient to issue protective orders.

The higher court ultimately ruled that the trial court should issue the protective order and allowed Rodriguez to recover her legal costs.

Dealing with a Family Situation Requiring a Protective Order

If you’ve come to this page because you have concerns about your own family situation, consider a couple things: First, just because your emotionally-abusive spouse or significant other hasn’t physically harmed you doesn’t automatically mean you are not entitled to a protective order. A legal precedent exists that says otherwise. Secondly, if you are afraid for your safety or the safety of your children due to the threats or past actions of an abusive partner, you should contact a good family attorney to discuss your options.

While it’s never pleasant to consider things like protective orders, and court hearings, some family situations reach a level of toxicity demanding immediate action. Because family law is complex, a good lawyer will be vital to helping you seek a fair settlement as well as piece of mind for you and your children.

If you have questions about protective orders, or some other family law issue, contact this office to learn how we can help.

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