How to Get a Move Out Order in California
One of the biggest issues in situations where there is some sort of domestic disturbance in the home is whether one spouse can have the other spouse involuntarily removed from the home. It would seem logical to have one spouse be able to ask for an order to keep the abusive spouse out of the home even temporarily, to allow for emotions to settle down and to allow time for the parties to figure out next steps in a safe environment. However, you cannot kick out your spouse or partner from the home simply because you no longer get along. You can seek an order to have an abusive spouse or partner removed from the home temporarily, but a permanent removal of an abusive spouse or partner from the home can be a long and slow process which often starts with obtaining a move out order (residence exclusion order).
So how do you get a move out order?
Types of Move Out and Restraining Orders
Move out orders are a type of domestic violence restraining order. There are two types of restraining orders that you can request from the court – a temporary restraining order (which typically lasts only a few weeks or months), and a long-term restraining order, which can last up to 5 years. Usually, temporary restraining orders are put in place until a full hearing can be ruled on, while long-term restraining orders are the result of those hearings.
Move out orders can be a part of either type of restraining order, whether temporary or long-term.
If you fear you or your children are in immediate danger, you should call 9-1-1 and request an emergency protective order (EPO), which is a shorter term emergency protective order issued by the police. This EPO lasts 5 court days or 7 calendar days, and is intended to keep the abuser away from the protected party long enough for the protected party to obtain a temporary restraining order.
Requesting a Move Out Order with the DV-100
In California, one of the forms through which you request a temporary restraining order is called the DV-100. If you want to request a move out order, there is a place on this form where you can do so.
On this form, you will be asked to answer questions like where the home is, why you have a right to live there, and to document the abuse you have faced. Providing this information demonstrates why you will be physically or emotionally harmed if you remain in the home with the abusive party, and provides the basis for the court ruling.
Right to Live in the Home
The easiest way to establish your right to live in the home is if you are solely responsible for the payment of the rent or if your name alone is on the lease. However, if this is not the case, it does not necessarily mean it will be impossible for you to get a move out order.
You will have to prove that you have a “right under color of the law” to be in the home. For example, if you contribute towards paying the mortgage or taxes, you may have the right to remain in the home. Other ways to prove your right under the color of the law include buying groceries or cleaning. This is why it is difficult to have a difficult, but not abusive party removed from the home – they have an equal right to live in the property.
Physical or Emotional Harm
The best way to demonstrate that you, your children, or any other dependents will face harm if they continue to live with the abuser is by documenting past abuse. Abuse can take many forms, but most often includes physical or emotional threats or abuse, stalking and financial control.
How Hart Ginney Can Help You
Hart Ginney LLP specializes in family law, including domestic violence cases, which often involve restraining and move out orders. If you need help preparing the best possible case to protect your safety and that of your loved ones, reach out to Hart Ginney today.