Many victims of domestic violence are living with their abuser when they decide it is time to get out of the relationship. This scenario can make the victim feel as if they are unable to leave their abuser because they have nowhere else to live. This is especially true if the victim shares children or pets with his or her abuser and cannot easily disappear into a shelter.
In San Diego, there are two methods to obtain a court order effectively “kicking-out” another:
Ex Parte Kick-Out: Under California Family Code § 6321, “a court may issue an ex parte order excluding a party from the family dwelling, the dwelling of the other party, the common dwelling of both parties, or the dwelling of the person who has care, custody and control of a child to be protected from domestic violence.” The court may issue this order only if all of the following are shown: (1) the party who will stay in the residence has a right to possession of the premises; (2) the evicted party has assaulted or threatened the other party or minor children and (3) physical and/or emotional harm would result if the order is not granted. Under this method, the requesting party has a high burden to meet.
Noticed Motion Kick-Out: Under California Family Code § 6340, “a court may issue an order…excluding a person from a dwelling if the court finds that physical or emotional harm would otherwise result to the other party, to a person under the care, custody, and control of the other party, or to a minor child of the parties or of the other party.” Under this method, the requesting party has a lesser burden than if he or she had requested a kick-out order under California Family Code § 6321.
Once the order is granted, it will be forwarded to the local police who will enforce the order. The police will then escort the violent party off the shared premises. Requests for kick-out orders before San Diego family courts tend to surge in times of stress. Increased use of alcohol and drugs, along with changes in the economy, can spark tension and lead to more kick-out orders.
Obtaining kick-out order is a serious process and may have severe consequences for the evicted party. Accusations of domestic violence can have a negative impact on current and future employment. Further, domestic violence has a profound impact in child custody and visitation proceedings. Additionally, if the kicked-out party decides to reenter the residence, he or she may face criminal prosecution.
In conjunction with a kick-out order, a domestic violence victim may seek a temporary restraining order. A temporary restraining order is granted on an emergency basis and lasts until a hearing is held on the matter. Prior notification to the abuser is not required to get the temporary order but notice must be given in order for the abuser to have sufficient time to prepare for the full hearing. A judge may grant a domestic violence restraining order (DVRO) after a full hearing from both parties. The DVRO can protect the victim for anywhere between six months and five years depending on the circumstances of the individual case.
If you are a victim of domestic violence and would like to seek a restraining order or a kick out order we can provide you with information and guide you through your options. We have expert consultants available if needed to help you prepare for your case. Our team of experienced attorneys is prepared to litigate on your behalf.
If you wish to schedule a consultation with Nancy J. Bickford, call us at (858) 793-8884.