What is a domestic violence restraining order?

For a victim or survivor of domestic abuse, a domestic violence restraining order prohibits a perpetrator of domestic abuse from coming near you. It may also provide you with other relief, depending on the type of order.

What type of orders can you get?

Standard orders

• No contact order: prohibits contacts with you in any way, incl through third parties
• Stay away order: usually prohibits coming within 100 yards of you, your children, your home, your school/workplace, vehicle, children’s school or childcare, and other places you frequent, such as relative’s home, place of worship

Other relief you can request:

• Residence exclusion or move out orders (not granted easily)
• Firearm restriction
• Record unlawful communications
• Pets: Possession and stay-away order
• Child custody, visitation, and support
• Property control and debt payment
• Freeze marital assets and spousal support
• Attorney fees
• Batterer’s treatment program
• Domestic Violence & Custody
  • Rebuttable presumption against custody based on violence:¹CFC 3044 it is presumed detrimental to child to be in custody of a domestic violence perpetrator. This determination is based on a domestic violence conduct, finding, or conviction within previous 5 years.
  • Child custody, visitation, support, and spousal support orders do not expire when restraining order ends

Emergency orders vs longer-term orders

Emergency restraining orders differ from longer-term orders, including criminal protective orders, juvenile restraining orders, and civil restraining orders. Here’s how each works:

Emergency protective orders (EPO)²Family Code 6250

• Issued by magistrate unit in criminal court
• Contact law enforcement to initiate
• Available 24/7
• Purpose is to provide protection until survivor is able to file civil order
• Typically good for 5-7 days

Civil Temporary Restraining Order (TRO) and Civil Restraining Order After Hearing (ROAH)³Fam code 6320, 6340

• Often referred to as domestic violence restraining order (DVRO)
• TRO lasts up to 21 days; then it may convert to a ROAH, which lasts up to 5 years (renewable)

Juvenile restraining order

• Issued by dependency court or children’s court
• Similar to domestic violence restraining orders in family court

Criminal Protective Orders (CPO)

• For misdemeanor or felony domestic violence
• Lasts up to 10 yrs, pending trial or as condition of probation
• When no expiration date is specified, expires 3 years after date of issuance or when probation terminates
• Expires when case is dismissed or acquittal
• Not as comprehensive as domestic violence restraining orders
• Issued through criminal court, so survivor doesn’t have as much control over enforcement or what goes into it

What happens if there are conflicting orders?

Conflicting restraining orders are enforced in following order: EPO, no-contact order, CPO, civil orders (if multiple, the one issued last is enforced).

What is the process of getting a domestic violence restraining order?

For an emergency protective order, contact police or other law enforcement to initiate the process.

Other than an emergency protective order (which you can get immediately), the process for getting a domestic violence restraining order takes about 3 weeks.

Here are the basic steps:

1. Request both a restraining order and temporary restraining order (TRO)
2. The judge decides the same day whether to grant the TRO
3. Whether or not TRO is granted, you are given a court date for a hearing
4. Serve opposing party (perpetrator) with notice of the hearing
5. Appear at hearing where judge will either proceed with hearing to grant/deny restraining order or issue continuance
6. If granted, you get a Restraining Order After Hearing (ROAH)

How to file for a domestic violence restraining order in California?

You can file for a domestic violence restraining order in person at the court or through e-filing. There are no fees to file, or for service of notice of orders by the sheriff.

You must then serve notice of the restraining order on the perpetrator:

• Personal service generally required
• Go to Sheriff Dept in person with copy of court-granted TRO and signed request for service form
• If unable to get personal service, can request alternative service, e.g. first class mail to respondent’s home or work. Generally requires some evidence of evasion. Private process servers can be helpful to provide narrative of evasion

What type of abuse qualifies for a domestic violence restraining order?

You must make a claim that there is active abuse. Abuse is defined as:⁴Fam Code 6203

• Intentionally or recklessly causing or attempting to cause bodily injury
• Sexual assault
• Placing person in reasonable apprehension of imminent serious bodily injury to that person or to another
• Engaging in any behavior that has been or could be enjoined such as molesting, attacking, striking, stalking, threatening, battering, harassing, telephoning, destroying personal property, contacting the other by mail or otherwise, disturbing the peace of the other party
• Coercive control: isolating victim from friends, relatives, or other support; depriving victim of basic necessities; controlling victim’s communications, daily behavior, finances, economic resources, many other behaviors that cause severe emotional distress

Some case examples include Conness v Satram (2004), which involved harassing phone calls, letters, false reports regarding parole violations.⁵Conness v Satram (2004) 122 Cal App 4th 197 Marriage of Nadkarni (2009) defines disturbing the peace (he hacked into her emails and forwarded some of her attorney-client privileged confidential communications).⁶Marriage of Nadkarni (2009) 173 Cal App 4th 1483

What types of relationships qualify for a domestic violence restraining order in California?

The following types of relationships qualify for a domestic violence restraining order in California⁷Family Code 6211

• Spouse or former spouse
• Registered domestic partner (or former)
• Cohabitant/former cohabitant (not merely roommate)
• Past or present dating/engagement relationship
• Parties who have children together
• Child of party
• Relatives within 2 genealogical degrees (by blood, marriage, or adoption): parents, grandparents, siblings, children, grandchildren

What can I do if it’s not a qualifying relationship?

If there is no qualifying relationship, there are alternative restraining order filings, including:

• Civil harassment RO
• Workplace violence RO
• Elder/dependent adult abuse RO

Who can be protected under the restraining order?

You can request a restraining order for the family or household members.

Can minors file for a restraining order?

Minors, 12 and older, can file a domestic violence restraining order. A guardian ad litem needs to file on behalf of minors under 12.⁸CFC 6229

What are some tips on the hearing for the domestic violence restraining order?

• Applicants for a domestic violence restraining order have right to support person with them during court proceedings
• Burden of proof is “preponderance of the evidence,” for at least one act of abuse (no need to show multiple acts)
• Meet and confer with opposing counsel (or respondent if unrepresented) to see if any agreements re requested relief
• File exhibits with court in advance of hearing

What if there are mutual restraining orders?

It is highly unusual for a court to issue mutual ROs, as the court must engage in primary aggressor analysis. The court should also consider dominant aggressor analysis, not just first one to act aggressively.⁹Family Code 6305 If issued, the court usually sets both cases for hearing at same time.

Renewal of ROAH

• Request for renewal may be brought within 3 months before expiration of ROAH
• Renewable for 5 years or permanently without showing of further abuse
• No requirement to show violation of existing RO
• Court must find by preponderance that petitioner entertains reasonable apprehension of future abuse

What other rights and benefits do domestic violence victims have?

Many survivors qualify to have costs for counseling, relocation, security for home covered by the CA victim compensation program.

Further Resources

CA victim compensation program

Guide to the Law for Victims of Crime in California

Guide to Laws about Marriage and Divorce

Photo credit: Freepik