A recent story out of Rancho Cucamonga has all of us family law types in the area buzzing, since we know the attorneys and the judge involved.
Michael Burton - in the midst of a contentious divorce - killed his wife, Otilia, with a samurai sword outside of their home. The parties' children were inside. That's a very messy - and very personal - way to kill someone.
But there is more to this story. It appears Otilia filed a declaration in which she said she "feared" her husband. I looked over the court's case summary, and I suspect without actually viewing the pleadings, Otilia sought what we call a "kick out" order, that is, tried to gain exclusive custody and control of the family home. But I saw no occasion when she sought a restraining order for domestic violence.
It is not as easy as one thinks. To gain an ex parte order in California's family court - that is, an order from the Court after about 12 - 24 hour notice to the other party (versus regular notice, which code mandates is at least 16 court days) - a party must show that there will be "irreparable harm" or "immediate danger" if the Court does not hear the matter NOW. In the case of domestic violence, that means someone has acted in such a way to cause reasonable fear or apprehension in the other person. Doesn't have to mean actual battery - it can be threats, restraint, destruction of property, etc. If the ex parte relief is granted, a temporary restraining order is granted and a hearing is held within 21 days to determine if a permanent restraining order (not really permanent - anywhere from 6 months to 3 years).
BUT - all you get is a piece of paper. I am not saying it's useless - it certainly is. If the restrained person starts stalking you, it will land them in jail. It can be given to school officials so they know they cannot release children to the restrained person, thus avoiding an "Amber Alert." However, I recall one bench officer in Riverside holding up the order she had just made, and reminding the woman standing in front of her - "Ma'am, this won't stop a bullet - take other precautions as well."
Good advice, indeed. I urge anyone who is in a situation where there is domestic violence or knows of someone in one, "take other precautions." See a lawyer and get a restraining order, but move out or away, make sure friends and family check in on you, carry a cell phone, whatever it may take. I see "bogus" DV (domestic violence) charges, but I also see real ones. Don't let the last one happen.
And pray for Otilia Burton's soul.