A domestic violence restraining order (DVRO) is an order issued by the court in domestic violence lawsuits. It prohibits the defendant from threatening, harming, or harassing the victim. A restraining order violation could result in charges as outlined under Penal Code 273.6. The violation of PC 273.6 is a misdemeanor offense (rather than a felony). A conviction can lead to up to one year of confinement in a county jail or a fine.
A domestic violence case arises when the perpetrator and the purported victim are or were:
- Intimate partners
- Domestic partners
- Dating or dated in the past
- Have a child together
- Have other family relationship
The Definition of Domestic Violence In California
Domestic violence occurs when your current or previous spouse, boyfriend, girlfriend, a person you have a child with, a person you live(d) with, or anyone you are connected to through marriage or blood does any of the following:
- It hurts you or tries to inflict physical harm on you
- Assaults you sexually
- Makes you fear or believe that you or your loved one is in danger of imminent harm
- Attacks, molests, batters, or strikes you
- Stalks you
- Harass and threaten you, whether in person, over the phone, by email, or any other way.
- Damages your personal property
- Disturbs your peace
Disturbing your peace means that a person acts in a manner that affects your mental or emotional well-being, including exercising coercive control. Coercive control is a behavior pattern that interferes with your personal liberty and free will. Some ways a person can exercise coercive control against you include:
- Isolating you from your family, friends, and other support groups
- Depriving or denying you your basic needs
- Regulating, controlling, or monitoring your movements, daily activities, communication, and finances
- Using intimidation, force, or threats of force based on your suspected or actual immigration status to make you do something you have no right to do. The defendant can also use force or intimidation to prevent you from doing something you have a right to do.
- Reproductive coercion. This occurs when the defendant uses force, threats of force, or intimidation to take over someone's reproductive autonomy. This can include interfering with the victim's contraception use or access or pressuring the victim to become pregnant.
Types of Restraining Orders
There are three main types of restraining orders:
Emergency Protective Order
When a law enforcement officer responds to a domestic abuse incident, he or she can contact the judge at any time and request an emergency protection order. This protective order will take effect immediately, even at night or on a holiday. A judge can only issue an emergency protective order if it is evident that there is a threat of domestic violence. The order can also be issued if a child is in danger of abuse or abduction by their parent or relative. An emergency protective order seeks to prevent child abuse, domestic violence, or child abduction.
An emergency protection order has a maximum validity of seven calendar days or five business days, whichever is shorter. An emergency protection order is intended to provide you with enough time to appear in court and apply for a longer-term domestic violence protective order.
The judge can incorporate most protections in a regular DVRO in an emergency order. The protection can include removing the perpetrator from the residence shared with the victim and ordering them not to contact the victim. It can also grant the victim temporary custody of the children.
Temporary Restraining Order
When a victim goes to court to request a restraining order, the court clerk gives them a date, typically within three weeks. The victim has to return to court for a formal hearing. If the applicant is in danger and requires protection immediately, he/she can apply for an emergency restraining order. The order can compel the perpetrator to leave the shared residence, have no contact with the victim, and offer many other additional forms of protection required.
Permanent Restraining Order
Even if you receive a temporary protective order, you must attend a hearing to obtain a final DVRO. You can attend the hearing in person or remotely. Following the court hearing, the judge could award you a "restraining order after hearing" for up to five years. If the order does not include an expiration date, it will be valid for three years from when it was issued.
During the final three months of your order, you can request the judge to extend it for an additional five years or permanently. The court can grant this extension without requiring you to provide evidence of additional abuse.
The Process of Obtaining a Restraining Order
Here is the process for obtaining a domestic violence restraining order:
Step 1: Collect Evidence
The initial step is to collect evidence to back up your case. The following is considered proof of domestic violence:
An Ongoing Criminal Case
Courts are far more likely to grant a restraining order if there is a pending criminal case. Therefore, it is critical to specify these situations when requesting a domestic violence restraining order. When the judge learns about an ongoing criminal case, he/she will presume that domestic violence occurred.
Photos Depicting Violence, Injuries, And Damage
Documented evidence is the most prevalent form of evidence submitted in domestic violence cases. These could be photographs depicting the victim's injuries caused by the abuser. Including images alongside the incident description is essential to providing the judge with a clearer picture.
Print Messages, Emails, or Voicemail Transcripts
You can capture and share screenshots of messages you receive from the abuser. Additionally, you can print out emails and upload them as images or PDF files.
Hot Line Or 911 Calls
Instead of simply stating that you called 911 or a particular hotline, you could strengthen your case by providing the following information:
- The phone number dialed when seeking help, including the domestic hotline
- The time and date when the call was made
- Who made the call?
- The information provided on the call?
- Any precise data about the individual who answered the 911 call, for example, whether it was a male or female voice
Medical Documents
You can provide documentation of any previous medical emergencies or injuries caused by the abuser's activities. This can include evidence of your hospital visits. You can also provide printouts from the hospital portal outlining your appointment details.
Police Reports
Include a copy of the law enforcement reports filed against the perpetrator of domestic violence.
Witness Testimony
A witness can be anybody, including a family member, friend, colleague, or passerby. Witness testimony is simply a writing that describes the events witnessed in as clear details as possible.
Stage 2: Acquire The Relevant Forms
When applying for a domestic violence restraining order, you must complete a set of court forms. You will provide information in these forms to help the court understand your predicament and the people involved.
Request For Domestic Violence Restraining Order – DV-100
The purpose of this form is to request a restraining order from the judge. You will also explain why you require a restraining order.
Confidential CLETS Information – CLETS-001
The information contained in this form will enable law enforcement officers to enforce the restraining order. The court will not use the details filled out on this form. The person against whom the restraining order is issued will not receive a copy of this form.
Notice Of Court Hearing – DV-109
Most of the details in this form will be completed by the court. You only have to fill in numbers 1, 2 and 3
Temporary Restraining Order – DV-110
You only need to fill in numbers 1 to 3 of this form. The court will complete the rest.
Income and Expense Declaration – FL-150
This form is optional. You can complete this form requesting child support, spousal support, or attorney fees. In this form, you will provide your earnings and expenses. You should provide evidence of your earnings for the past few months.
Response To Request For Domestic Violence Restraining Order – DV-120
You should not complete this form. The person you seek protection from will receive a copy of this form from your server.
Proof Of Personal Service – DV 200
The purpose of this form is to prove that the perpetrator of domestic violence has been served with the restraining order in person. Your server will complete and sign the DV-200 form.
If you and the restrained person have a child and you want parenting rights or child custody, you have to fill out additional forms:
- Request for Child Custody and Visitation Orders – DV-105
- Child Custody and Visitation Order – DV-140
- An optional Request for Order: No Travel With Children – DV-108
- An optional Request for Order: No Travel With Children – DV -145
- Income and Expense Declaration – FL-150
Step 3: Submit The Court Forms
In California, the victim files the forms with the Superior Court of the county where they live or where the domestic violence occurred. For example, if you reside in San Francisco, go to the Superior Court of California in the County of San Francisco. There could be many unique situations and precise details, but this is the typical process.
Make an appointment with an attorney if the circumstances of your case are unusual. For example, the abuser could be living overseas, or you could be overseas, and the perpetrator of domestic violence is in California.
Methods of Filing The Forms
You can submit the restraining order forms in person during court hours. Typically, you will submit three copies to the court. The court clerk reviews the documents to ensure that everything is okay, enters them into the court system, and stamps them.
You can also submit the documents electronically via an online portal. Some courts have one or several online portals where you can create a free profile and upload the restraining order documents. Sometimes, you must pay a filing fee ranging from $5 to $10.
The other common way of submitting restraining order documents is through another person. Some courts allow you to file the documents through a friend or legal courier. Courier companies or individuals charge an hourly or flat fee.
Step 4: Get a Temporary Order
The judge can issue a restraining order immediately, depending on the facts of your case or the evidence presented. This restraining order is known as an emergency restraining order and is usually issued in highly risky situations. In a less risky situation, the judge can issue a temporary restraining order, usually issued after several days. The judge can reject your application if you have no grounds for applying for a restraining order, the jurisdiction is incorrect, or your application form is incomplete.
A temporary restraining order is valid for three weeks, after which you will attend a restraining order hearing. If the restraining order is delayed for any reason, you should consult the court to ensure that the temporary restraining order is renewed until the hearing.
Step 5: Serving The Abuser
This step will only apply if you successfully obtain a restraining order. Otherwise, you have to wait until the court grants the order before you serve the abuser. The abuser can be served by a law enforcement officer, your relative, a friend, or a courier service.
Step 6: Present Evidence During Court Hearing
The court hearing takes place a few weeks after you are granted a temporary restraining order. At the hearing, the court examines the evidence against the defendant. The judge issues a permanent restraining order after establishing that the evidence provided is sufficient and warrants a restraining order. At this point, it will be an offense for the restrained person to violate the terms of the restraining order.
Step 7: Collect The Final Restraining Order
If the judge grants a permanent restraining order after the hearing, you can obtain a copy of the order. Typically, this order will be valid for five years.
Find a Restraining Order Attorney Near Me
Are you facing threats, intimidation, violence, or any other form of abuse from your spouse, ex-spouse, current or former partner, or any other relative?
Our attorneys at the Foos Gavin Law Firm can help. With a restraining order in place, the abuser will be prohibited from coming close to you and will likely be ordered to vacate your shared residence. We can help you obtain an emergency restraining order and also represent you at the restraining order hearing in Sacramento, CA. Contact us at 916-779-3500 to speak to one of our attorneys.
