Domestic Violence Restraining Orders
In domestic violence cases there are multiple types of restraining orders that can be issued and imposed in a case. Domestic violence restraining orders can be imposed by a family law court judge (civil DVRO) or by a criminal court judge (criminal CPO) if a person is being prosecuted for a domestic violence case.
Domestic Violence Prevention Act – Family Law Court
In a domestic violence restraining order case filed in the family law court there is a two-step process. First, a petition is filed requesting a temporary order until a hearing can be held to determine if a permanent order should be issued. If the judge grants the temporary order and it is served on the restrained party, the temporary orders must be complied with and stay in effect until the outcome of the permanent restraining order hearing.
Required Relationship
Domestic Violence Restraining orders can be obtained if there is domestic violence against a spouse/former spouse, cohabitant/former cohabitant, dating/former dating partner, party whom you have children, child of party, parents, grandparents, siblings, or children. (FC6211)
Temporary Restraining Order (TRO)
A temporary restraining order is the most common restraining order issued in domestic violence cases. The moving party most prove that there is reasonable proof of past acts of abuse. (FC6300) The TRO can include personal conduct restraints, residence exclusion, stay away orders, and firearm prohibitions. During the term of the protective order the defendant cannot own, possess, purchase, or receive any firearms. (Pen C §12021(g)) The TRO remains in effect until the date of the hearing which is no later than 20 days from the date of the order.
Notice
Personal service of ex-parte TRO at least 5 days before hearing. Response is due at least 2 days before hearing.
TRO COnduct
The following type of conduct will result in a restraining order being issued.
- Intentionally or recklessly causing/attempting to cause bodily injury, or sexual assault
- Placing person in reasonable apprehension of imminent serious bodily injury
- Behavior that can be enjoined including molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, false impersonation, harassing, destroying personal property, contact directly/indirectly by mail, coming within specific distance, or disturbing the peace.
Proof to grant TRO
To grant a TRO requires reasonable proof of past acts of abuse. (FC6300) To grant a temporary restraining order requires proof by a preponderance of evidence. (EC115)
Mutual Orders
Mutual orders are not allowed unless both parties personally appear, and present written evidence of abuse and the court makes detailed findings of fact that both acted primarily as aggressors and neither acted primarily in self-defense. (FC6305)
Ex-Parte TRO Orders
An TRO can be used to enforce personal conduct orders, stay away/no contact orders, stay away/personal conduct towards animals, residence exclusion orders, other restraints, firearms/ammunition prohibitions, temporary custody/visitation, temporary property use/possession and debt payments, or prohibit insurance changes. (FC6320, 6321, 6322, 6323, 6324, 6325.56322.7, 6389, 6346)
Order After Hearing Orders
After the restraining order hearing the orders that can be imposed include all ex-parte orders, child support, spousal support, restitution for loss of earnings and out of pocket expenses, batterer’s intervention program and attorneys fee and costs. (FC6340, 6341, 6342, 6343, 6344)
Protected Persons
Person and for good cause other named family or household members. (FC6320)
Duration of Ex-parte TRO
A TRO lasts for 21 days or 25 days if good cause exits. (FC242) Reissuance lasts until the date of the hearing. (FC245)
Duration of Orders After Hearing
A restraining order after hearing can last no more than 5 years for protective orders and firearms (FC6345) Custody, support and visitation orders survive expiration of the restraining order (FC6340) If order is silent, 3 years.
COntinuance
Respondent gets one continuance upon request for reasonable time to respond. (FC243) Petitioner not entitled to continuance unless response served less than 2 days before hearing. (FC243)
Modification
To petition for a modification or termination of the restraining order prior to the expiration date you must personally serve the protected party at least 16 days in advance of hearing. (CCP1005)
Renewal
5 years or permanently, filed within 3 months before expiration of order without showing of further abuse since issuance of original order. (FC6345)
Fees
There is no fee to file the petition or response. (FC6222) There is no fee for service from the Sheriff.
Settlement Options
In every case there is a legal preference by the court for the parties to work out a settlement agreement prior to trial. Sometimes it is possible when the parties have a mutual interest to resolve the issues without litigation. Unfortunately, sometimes a resolution can’t be worked out because one of the parties is unwilling to work out a settlement agreement.
Permanent restraining order Hearing
After the TRO is issued a hearing is held to determine if a permanent order will be issued. At that hearing both sides can present evidence regarding the allegations made. The moving party most prove that there is reasonable proof of past acts of abuse. If the judge grants a permanent order, it can include personal conduct restraints, residence exclusion, stay away orders, and firearm prohibitions. During the term of the permanent order the defendant cannot own, possess, purchase or receive any firearms. (Pen C §12021(g)) The permanent order remains in effect for up to 5 years.
Emergency Protective Orders – Upon Criminal Arrest
Emergency Protective Orders (EPO) are usually the first type of restraining order a person will be subject to in a criminal domestic violence situation. Police have the authority to generate and serve an EPO at the time someone is arrested for a domestic violence charge.
Required Relationship
Emergency Protective Orders can be obtained if there is domestic violence against a spouse/former spouse, cohabitant/former cohabitant, dating/former dating partner, party whom you have children, child of party, parents, grandparents, siblings, or children. (FC6211)
Notice
Police personally serve respondent if they can locate and gives a copy to the protected party. (FC6271) An EPO is generally served by the police officer who is investigating the case.
EPO COnduct
The following type of conduct will result in an EPO being issued.
- Person in immediate and present danger of DV based on person’s allegation of recent abuse or threat of abuse. (See FC6203 for abuse definition, FC6250)
- Child in immediate and present danger of abuse by family or household member based on allegation of recent abuse or threat of abuse. (FC6250)
- Child in immediate and present danger of abduction by parent or relative based on reasonable belief that person has intent to abduct or flee jurisdiction or on allegation of recent threat to abduct or flee jurisdiction. (FC6250)
- Elder or dependent adult in immediate and present danger of WIC15610.07 abuse based on allegation of recent abuse or threat of abuse. (FC6250)
- Person in immediate danger of stalking based on allegation that he or she has been willfully, maliciously and repeatedly followed or harassed by another person who has made a credible threat with intent to place person in reasonable fear for his/her safety or safety of immediate family. (PC646.91, FC6274)
- School campus peace officer asserts reasonable grounds to believe there is demonstrated threat to campus safety. (FC6250.5)
Proof to grant EPO
Reasonable grounds to believe immediate and present danger of DV, child abuse, or abduction, elder or dependent abuse, or stalking and EPO is necessary to prevent occurrence or recurrence of DV, child abuse or abduction, elder or dependent abuse, or stalking. (FC6251, PC646.91)
EPO Court Orders
An EPO can be used to enforce personal conduct orders, stay away orders, residence exclusion orders, temporary care/control of a child or protection of an elder or dependent adult. (FC6252, 6218, 6320, 6321, WI15657.03, 213.5)
Protected Persons
Person and children in danger.
Duration of EPO
An EPO lasts the earlier of the close of business on the 5th court day after day of issuance or 7th calendar day following day of issuance. (FC6256)
Clets
Law enforcement officer shall enter the EPO into the DOJ database. (FC6271)
Criminal Protective Order – Imposed at the Arraignment
In all DV cases, the prosecutor will ask for a criminal protective order (CPO) to be put in place to protect the victim or witnesses from harm or intimidation. (Pen C §136.2) In almost all cases, the judge will order the CPO to be issued and served on the defendant in court at the arraignment. The CPO can include personal conduct restraints, stay away orders, and firearm prohibitions. During the term of the protective order the defendant cannot own, possess, purchase or receive any firearms. (Pen C §12021(g)) The CPO remains in effect until the defendant is no longer subject to the court’s jurisdiction. The only way not to have a CPO issued is to have the victim appear in court and tell the judge they do not want the protective order to issue. Even if the judge agrees, a judge may still issue a peaceful contact order which means the defendant is ordered not to harass, strike, or annoy the victim but can still have contact.
You don’t have to Represent yourself
Because of the many legal issues in a restraining order case, it is always best to have an attorney handle the case. Our experienced and aggressive efforts usually result in a successful outcome in your case. Call our office today at (916) 939-3900 for a free case evaluation and what we can do for you.