The decision to seek a Domestic Violence Restraining Order is often fraught with uncertainty, fear, and general uneasiness. Many victims worry that the abuse they are experiencing—whether physical, verbal, or psychological—will not be believed by the court and that the court may deny their request for protection. Others are scared to recount their abuse and testify about it in court and worry it may lead to retribution by their abuser. And, in our experience, generally, all victims are uneasy about the legal process and procedural components required to seek the restraining order.
While the decision to seek a restraining order is a significant decision to make, victims must also consider the potential, unintended consequences if they choose to not seek the restraining order.
The Failure to Protect the Child: If a victim of domestic violence has a minor child in the home who may be witness to the domestic violence, a victim’s decision not to seek a restraining order may be construed as a failure to protect the child. The court is extremely concerned about a child being collateral damage in a domestic violence situation. A child does not have to experience physical harm by the abuser; the mere fact that a child is present during the domestic violence is enough for a court to have a legitimate concern about a child’s safety and to question a parent’s ability to protect the child. Should this occur, it is the dependency courts that will assume jurisdiction over the matter thereby removing the matter from family court after the Department of Children and Family Services investigates.
Thus, a victim of abuse may be in trouble with the court, and at risk of temporarily losing custody or having the child removed from the home (depending on the severity of the abuse) if the victim fails to address or make progress in addressing the domestic violence in the home by seeking protection for himself or herself and the child.
Documented Evidence of Domestic Violence Could Protect the Victim From Paying Spousal Support to their Abuser: Public policy in California provides that a victim of abuse should not be required to finance their own abuse, i.e., that the victim should not have to pay their abuser spousal support. Any history of domestic violence and emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party will likely have an effect in the determination of the payment of spousal support by the victim to the abuser.
Thus, a victim’s failure to seek a restraining order against their abuser may impact spousal support. If domestic violence is prevalent in the marriage, and the victim is also the breadwinner, it is important to consider seeking a restraining order to reduce the risk of the victim paying spousal support.
Failure to Seek a Restraining Order May Unintentionally Minimize the Severity of the Abuse: One of the key components in a court’s decision as to whether to grant or deny a restraining order is its determination of whether the victim holds a reasonable apprehension of harm from their abuser. A victim’s decision to delay a restraining order may cause the incidents of domestic violence to become too remote in time which may cause the court to minimize the severity of the abuse and thus the victim’s reasonable apprehension of fear. Timing is important; the failure to act and address the issues of abuse could unintentionally minimize the need for protection.
The determination of whether to seek, or not to seek, a domestic violence restraining order must be looked at from many different angles. While the concerns of retaliation from the abuser, the discomfort of having to testify about the abuse, and being stuck in the labyrinth of the legal system are all valid, a victim must also consider how the failure to obtain a restraining order could affect the issues of custody and spousal support in their case, too. Like many aspects of a family law matter, the decision of whether to seek, or not to seek, the court’s assistance must be carefully assessed so as to avoid unintentional consequences.