Everything You Need to Know About Successfully Requesting or Defending a Domestic Violence Restraining Order in California
It doesn’t matter which side of the table you are on, family law restraining orders are stressful and nerve wracking for everyone involved. They are an extremely serious matter and should not be taken lightly.
A domestic violence restraining order is a legal method of protecting people from abuse or harassment carried out by a family member, close relative, spouse or partner, or anyone who shares residence with the petitioner.
In California, a restraining order prevents a person from harassing, abusing, stalking, or threatening another person. The party that is seeking the restraining order or is protected is known as the “protected person.” The other party, i.e. the party against whom the restraining order is being sought, is known as the “restrained person.”
California law recognizes four kinds of restraining orders. These include:
- domestic violence restraining orders;
- elder abuse or dependent adult abuse restraining orders;
- civil harassment restraining orders; and
- workplace violence restraining orders.
This article will primarily focus on family law domestic violence restraining orders rather than the other three types of restraining orders available in California.
What is a Domestic Violence Restraining Order?
A domestic violence restraining order is a family court order designed to protect a person from another named party.
A person can ask for a domestic violence restraining order if:
- the restrained party has abused the protected party, and
- the protected party has a close relationship with the restrained party.
A “close relationship” means that the two parties are:
- domestic partners,
- dating or used to date,
- share a child together,
- live together, or
- are family members or in-laws.
A restraining order can include various provisions and restrictions, including the following:
- Personal conduct orders. These prevent the restrained party from committing certain acts (e.g., making phone calls, harassing, threatening, destroying personal property, and assaulting the protected party).
- Stay-away orders. These keep the restrained party a certain distance away from the protected party, or his/her children, work, home, or some other specified place.
- Residence exclusion orders (move out orders).
- Child support orders.
- Spousal or partner support orders.
- Orders to pay certain bills.
- Pet protection orders.
- Orders preventing the restrained party from making any changes to insurance policies.
- Orders to release or return certain property.
- Complete a 52-week batterer intervention program.
How Long Does a Domestic Violence Restraining Order Last?
Be aware, there is a difference between a “temporary” and “permanent” restraining order. A restraining order is temporary if it is issued prior to a hearing. A permanent order is a restraining order issued as a result of a hearing.
- Temporary Restraining Order (TRO). Anyone can file for a TRO if they are the victim of violence, threats of violence, abuse, domestic abuse, or harassment. These orders are filed in the Superior Court and last between 20 to 25 days. There is no filing fee to file for a restraining order. The purpose is to offer protection to the protected party before the court has heard their full case, on an emergency ex parte basis.
- Permanent Restraining Order. These are usually only issued after a TRO and cannot be ordered unless there is an actual court hearing. Based on the evidence presented at the hearing, the court may issue a restraining order for six months, a year, three years, or five years, depending on the circumstances. The maximum length of a restraining order is five years from the court date or court hearing date upon which the order was issued.
Note that even if no other acts of abuse or violations of the order have taken place since the order was made permanent, the protected party may petition the court to renew the order. The protected party must show by a preponderance of the evidence that the protected party still has a “reasonable apprehension” of future abuse.
What if the Restrained Party Violates the Restraining Order?
Violation of a restraining order is a misdemeanor under California Penal Code 273.6.
In order to actually be prosecuted, the district attorney would need to prove the following, beyond a reasonable doubt:
- A court lawfully issued a restraining order,
- The defendant (restrained party) knew of the restraining order,
- The defendant had the ability to comply with the restraining order, and
- The defendant willfully violated the restraining order.
When it comes to the temporary restraining order (TRO), not only will violation of the temporary order almost guarantee that a permanent restraining order will be granted, violation of the order is also a crime.
Proceedings for contempt of court for violation of a domestic violence restraining order can also be brought for violation of these orders.
Can a Restrained Party Possess a Firearm?
Most restraining orders prohibit a restrained person from owning or possessing a firearm for as long as it is in effect. They also generally prohibit a restrained person from purchasing a gun.
A person that violates these prohibitions can face criminal charges per Penal Code 29825. However, this violation can be charged as a felony. There is a form (DV-800) that a restrained person must fill out related to firearms. It contains instructions related to appropriate places where restrained persons can turn in their firearms while the restraining order is pending.
How Do I Get a Restraining Order?
The person who wants to seek protection via a domestic violence restraining order should contact a family law attorney to help draft and complete the various forms and documents necessary to get a restraining order.
Should the party seeking protection choose to proceed without an attorney, he or she must describe why he/she is requesting protection from the restrained party in the restraining order forms before submitting them to the court.
A judge then reviews the forms and decides whether or not to issue a TRO. If issued, the order will usually last for 21 days.
Following the issuance of the TRO, the court will determine whether or not to make it a permanent restraining order after hearing evidence on the matter. Prior to this hearing, notice of it must be given to the restrained party via a process server, and proof of service must be filed.
If the evidence shows that the protected party warrants a restraining order, the court issues one for a specified period of time.
How Do I Challenge a Restraining Order?
Prior to the hearing on the restraining order, work on building a solid defense to each allegation against you. If there is evidence in your favor, including documents, pictures, or witnesses, be sure to let your attorney know right away.
Make sure that your declaration is as accurate as possible (avoid hyperbole, misstatements, assumptions, and speculation) and includes all information you want the court to know. You do not want to have evidence excluded because the other side was not given “notice” of a claim or the existence of evidence.
If the case involves children, begin gathering evidence about your involvement as a parent. You will want to work on overcoming the Family Code 3044 presumption that you should not be granted custody, as many parents try to use restraining orders strategically to gain an advantage in custody cases.
Consider taking a co-parenting (especially a high-conflict centered) class, parenting classes, and individual counseling. Being proactive about preventing future conflict can show the court that future abuse is unlikely to reoccur. You may also have character witnesses, though witnesses who actually perceived the events in question are more relevant and powerful.
Tips for the Restrained Party to a Domestic Violence Restraining Order
- Carefully Read the Restraining Order. Legal paperwork can be confusing but be sure that you always read everything very carefully. Pay special attention to the DV-110 and DV-130 forms because these are the actual order portions, depending on what stage of the process you are in. The order is valid and enforceable the moment you are served, and you may be subject to criminal charges for violating any of its terms.
- Do NOT Contact the Protected Party. Even if the contact was initiated by the protected party or was consensual, this is still a violation of the restraining order. The order does not restrain the protected party, so don’t assume the order is void or meaningless simply because the protected party contacts you. YOU are restrained, not the protected party. Take great care in avoiding any contact with the protected party. If they arrive at your location (for example, the local grocery store), you should leave that location immediately. Your children may also be listed as protected parties. If that is the case, you may be restrained from contact with the children (either partially or totally).
- Do NOT Indirectly Contact the Protected Party. Contacting the protected party using a third party is still considered “contact” and a violation of the order. Thus, using friends or relatives or even children as a messenger is a violation of the order. Even further, indirect contact includes social media. Even if they are not directly your friend, if you have mutual friends, be careful not to inadvertently make contact or third-party contact with the protected party under the restraining order.
- Be Careful About “Brief and Peaceful Contact” for Child Custody Exchanges. This “exception” to the restraining order is frequently the source of violations and false claims of violations. During the exchanges themselves, consider having a witness present or asking someone else to conduct the exchange. Also, consider exchanging at a neutral and public location, preferably with active surveillance cameras. Starbucks are often considered good exchange locations because they offer restrooms, cameras, and a time-stamped receipt in the event there is a disagreement about when a party arrived. Also consider avoiding exchanges by having them take place at schools. If you must be at the exchange, you could stay in the car and let the children walk to the other parent’s car. If there is a problem during the exchange, you can contact the police to keep the peace.
- Stay off Social Media. Anything you post on social media may find its way into court and in front of the judge. It’s advisable to avoid any discussions of court hearings on social media and avoid posting anything that could harm your case- even if you are not “friends” or otherwise directly connected with the protected party. Mutual friends and acquaintances may forward your posts.
What Should I Expect at a Restraining Order Hearing?
- Your Hearing May Not Go Forward Right Away. While domestic violence restraining orders are given statutory “priority” and are set within 21 days, they may not actually be heard right away. This can be because a continuance is granted, the court does not have enough time to hear the matter, or the matter is set for an evidentiary hearing (a family law trial where witnesses testify, and evidence is formally presented). Adequate preparation, especially for an evidentiary hearing, takes time. This is everyone’s one and only chance to present evidence on these issues, so a bit of time to gather evidence and prepare is not necessarily a bad thing. Additionally, an evidentiary hearing is a long hearing. Often the court’s calendar is impacted, necessitating a hearing set out several months.
- The Responding Party is Entitled to One Continuance. As a matter of right, the party who is responding to the restraining order can ask for a continuance. This means there is no need to show good cause (though it often exists due to the shortened time for the hearing).
The protected party does not have the same right. Either party may be granted a continuance if they are able to show “good cause.” Good cause means that the party requesting the continuance convinces the judge that the proposed continuance is necessary or a good idea.
- Temporary Orders May Be Modified. If your hearing is going to be continued, you may have the opportunity to make a requested amendment to the restraining order. Moreover, sometimes a family law attorney can negotiate with the parties and obtain an amendment. This often comes up when the temporary order impacts the restrained party’s ability to attend school or work or exchange the children for visitation.
- Past “Bad Acts” and Acts of Abuse Are Relevant. Past acts of violence may “form an evidentiary basis” for a permanent restraining order. The court may consider “reasonable proof” of past abuse as part of its decision about whether to grant a restraining order.
- The Burden of Proof is on the Protected Party, but it is a Low Burden. By a preponderance of the evidence (meaning it is more likely than not), the protected party bears the burden to prove that the restraining order is needed to 1) the prevention of future acts of domestic violence and 2) provide the parties with a cooling off period. The preponderance standard is the lowest burden of proof standard that the court uses.
- The Prevailing Party Can Request Attorney’s Fees. The family code allows the party who prevails in a domestic violence restraining order matter to request attorney’s fees. The fees are not mandatory. The court has discretion whether to make an award and how much. If you request fees, you will have to provide the court with an Income and Expense Declaration (FL-150). The court may consider the defense that an award would cause the other party an undue financial hardship.
California’s domestic violence procedures are complex and trying to navigate them without help of a California family lawyer can be frustrating. If you have questions about restraining orders, contact our accomplished and dedicated lawyers by calling (844) 4-TALKOV (825568) or contact us online for a free consultation with our experienced family law attorney, Colleen Sparks, who can guide you through the court process in a prompt and clear manner.
Our knowledgeable attorneys can also help if you have questions about any of the following:
- Child Custody and Visitation
- Restraining Orders
- Child Support
- Family Law Contempt