Domestic violence is a pervasive issue that affects individuals and families across all demographics. In California, the legal system provides robust mechanisms to protect victims of abuse through restraining orders. For residents of Beverly Hills and the greater Los Angeles area, understanding the nuances of Domestic Violence Restraining Orders (DVROs) is critical, whether you are seeking protection or responding to allegations.
This comprehensive guide explores the types of restraining orders available in California, the process for obtaining a DVRO, the scope of protection it offers, and the legal implications for all parties involved.
Types of Restraining Orders in California
California law recognizes several types of restraining orders, each designed to address specific relationships and circumstances. It is essential to identify the appropriate type of order to ensure the court has jurisdiction to grant the requested relief.
Domestic Violence Restraining Order (DVRO)
A Domestic Violence Restraining Order is governed by the Domestic Violence Prevention Act (DVPA), codified in California Family Code Section 6200 et seq. A DVRO is specifically designed to protect individuals from abuse or threats of abuse by someone with whom they have a close relationship.
To qualify for a DVRO under Family Code Section 6211, the relationship between the parties must fall into one of the following categories:
- Current or former spouses or registered domestic partners.
- Individuals who are cohabiting or formerly cohabited.
- Individuals who have or had a dating or engagement relationship.
- Co-parents of a child.
- Individuals related by blood or marriage within the second degree (e.g., parents, children, siblings, grandparents).
Emergency Protective Order (EPO)
An Emergency Protective Order is a short-term restraining order requested by law enforcement officers responding to a domestic violence incident. Under Family Code Section 6250, an officer can request an EPO from an on-call judge 24 hours a day if they believe there is an immediate and present danger of domestic violence, child abuse, or elder abuse. An EPO is typically valid for only five to seven days, providing the protected party time to file for a standard DVRO.
Civil Harassment Restraining Order (CHRO)
If the relationship between the parties does not meet the criteria for a DVRO (e.g., neighbors, roommates, co-workers, or distant relatives), the appropriate remedy is a Civil Harassment Restraining Order under California Code of Civil Procedure Section 527.6. The standard of proof for a CHRO is higher than that of a DVRO, requiring clear and convincing evidence of unlawful violence, a credible threat of violence, or a knowing and willful course of conduct that seriously alarms, annoys, or harasses the petitioner.
Who Can File for a DVRO?
Under the DVPA, "abuse" is defined broadly. Family Code Section 6203 defines abuse as intentionally or recklessly causing or attempting to cause bodily injury, sexual assault, or placing a person in reasonable apprehension of imminent serious bodily injury to themselves or another.
Furthermore, Family Code Section 6320 expands the definition of abuse to include behaviors such as stalking, threatening, harassing, telephoning, destroying personal property, or disturbing the peace of the other party. "Disturbing the peace" was interpreted in In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483 to mean conduct that destroys the mental or emotional calm of the other party. Effective January 1, 2021, Family Code section 6320(c) was amended by SB 1141 to expressly define "disturbing the peace" as including coercive control, defined as a pattern of behavior that in purpose or effect unreasonably interferes with a person's free will and personal liberty.
If you have experienced any of these forms of abuse and share a qualifying relationship with the perpetrator, you have standing to file for a DVRO.
The Process of Obtaining a DVRO
Navigating the legal process for obtaining a DVRO requires strict adherence to procedural rules. The process generally involves the following steps:
1. Filing the Petition and Requesting Ex Parte Orders
The process begins by filing a Request for Domestic Violence Restraining Order (Form DV-100) along with supporting declarations and evidence. In most cases, the petitioner will request temporary orders on an ex parte basis (without formal notice to the other party) due to the urgency of the situation.
Under Family Code Section 6300(a), the court can issue a Temporary Restraining Order (TRO) if the petitioner demonstrates reasonable proof of a past act or acts of abuse. The acts that may be enjoined are described in Family Code Section 6320. The judge will review the paperwork, typically within one business day, and decide whether to grant the TRO pending a full evidentiary hearing.
2. The Evidentiary Hearing
Whether or not the temporary orders are granted, the court will schedule a formal evidentiary hearing within 21 days, or up to 25 days if good cause is shown, pursuant to Family Code Section 242(a).
At this hearing, both parties have the opportunity to present evidence, call witnesses, and testify. The burden of proof is on the petitioner to demonstrate by a preponderance of the evidence that abuse occurred. If the court finds in favor of the petitioner, it may issue a long-term DVRO that may last up to five years under Family Code Section 6345(a). Before expiration, the protected party may seek renewal either for five additional years or permanently, without a showing of further abuse, on a showing of reasonable apprehension of future abuse.
What Does a DVRO Cover?
A DVRO is a powerful legal tool that can mandate a wide range of protections and obligations. Depending on the specific facts of the case, the court may issue orders including, but not limited to:
Personal Conduct and Stay-Away Orders
The core of a DVRO is the personal conduct order, which prohibits the restrained party from harassing, attacking, striking, threatening, or contacting the protected party. The court will also typically issue a stay-away order, requiring the restrained party to remain a specified distance (often 100 yards) from the protected party, their home, workplace, vehicle, and children's school.
Move-Out Orders
Under Family Code Section 6321, the court can order the restrained party to immediately move out of a shared residence, regardless of whose name is on the lease or title. To obtain a move-out order on an ex parte basis, the petitioner must show that they have a right to possession of the premises, that the restrained party has assaulted or threatened them, and that physical or emotional harm would result if the order is not granted.
Child Custody and Visitation
If the parties share children, the court can make temporary child custody and visitation orders. Notably, under Family Code Section 3044, a finding of domestic violence creates a rebuttable presumption that awarding sole or joint physical or legal custody to the perpetrator is detrimental to the best interest of the child. Overcoming this presumption requires the restrained party to complete specific requirements, such as a batterer's intervention program and parenting classes.
Financial Support and Property Control
The court has the authority to issue orders regarding child support, spousal support, and the control of property. For example, the court may order the restrained party to continue paying the mortgage or rent for the family residence, or grant the protected party exclusive use of a shared vehicle.
Firearms Relinquishment
California law strictly prohibits individuals subject to a DVRO from owning, possessing, or purchasing firearms or ammunition. Upon issuance of a TRO or DVRO, the restrained party must relinquish any firearms to law enforcement or sell them to a licensed gun dealer within 24 hours of being served, and file proof of compliance with the court within 48 hours of service (Family Code Section 6389).
Evidence Needed for a DVRO
The success of a DVRO petition or defense hinges on the quality and presentation of evidence. While a detailed, sworn declaration from the petitioner is the foundation of the case, corroborating evidence significantly strengthens the claims. Relevant evidence may include:
- Photographs: Images of injuries, property damage, or the scene of an incident.
- Communications: Text messages, emails, voicemails, or social media posts demonstrating threats, harassment, or admissions of guilt.
- Medical and Police Reports: Records of medical treatment for injuries or police reports documenting responses to domestic violence calls.
- Witness Testimony: Declarations or live testimony from individuals who witnessed the abuse or its aftermath.
It is crucial to ensure that all evidence is authenticated and admissible under the California Evidence Code.
Consequences of Violating a DVRO
A DVRO is a court order, and violating its terms carries severe consequences. Under California Penal Code Section 273.6, an intentional violation of a DVRO is a misdemeanor, punishable by up to one year in county jail and a fine of up to $1,000. If the violation results in physical injury, the penalties increase, and subsequent violations can be charged as felonies.
Furthermore, a violation can have significant implications in family court, particularly concerning child custody and visitation arrangements.
How to Respond if Served with a DVRO
If you are served with a Temporary Restraining Order and notice of a hearing, it is imperative to take the matter seriously. Ignoring the order will not make it go away; rather, it will likely result in the court granting a permanent order against you by default.
- 1. Obey the Order: Read the TRO carefully and comply with all terms immediately. Do not contact the protected party, even to discuss the case or apologize. If ordered to move out or relinquish firearms, do so within the specified timeframes.
- 2. File a Response: You have the right to file a Response to Request for Domestic Violence Restraining Order (Form DV-120) before the hearing. This is your opportunity to present your side of the story, deny false allegations, and provide your own evidence.
- 3. Seek Legal Counsel: DVRO cases are complex and have far-reaching consequences on your personal life, custody rights, and even employment. Consulting with an experienced family law attorney is crucial to protect your rights and prepare a robust defense.
Practical Takeaways
- Act Quickly: If you are in immediate danger, call 911. If you need protection, file for a DVRO as soon as possible to establish a legal boundary.
- Document Everything: Keep a detailed log of incidents, save all relevant communications, and take photographs of any injuries or damage.
- Do Not Self-Help: If you are the restrained party, do not attempt to resolve the issue directly with the protected party. Communicate only through legal counsel.
- Understand the Scope: A DVRO affects more than just physical proximity; it impacts custody, support, and property rights. Approach the process with a comprehensive legal strategy.
Schedule a complimentary 15-minute phone consultation. In-depth case strategy sessions are available at a flat fee. Contact Barsamyan Family Law at (424) 600-0019 or schedule online at barsamyanfamilylaw.com/contact.
Disclaimer: This article is for informational purposes only and does not constitute legal advice. Every situation involves unique facts and circumstances. Consult with a qualified attorney before making legal decisions.