Domestic Violence Restraining Orders (DVRO)

Domestic violence restraining orders (DVROs) are legal commands, issued by police officers and judges, against an alleged abusive person (Defendant, Respondent), who is domestically related to the person allegedly abused (Victim, Petitioner). Domestic violence restraining orders are designed to abate the alleged abuse and/or violence.

 

Note: Violations of domestic violence restraining orders may subject the defendant to severe civil and criminal penalties.

Domestically Related Defined: Under California law, a domestic violence restraining order may only be granted against a person who is domestically related to the alleged victim. Domestically related means that the victim and defendant are related in any of the following ways:

  • The defendant (Respondent) and alleged victim (Petitioner) are each other’s current or former spouses. For DVRO purposes, a “spouse” includes a legal domestic partner and a same sex spouse.

  • The defendant (Respondent) and alleged victim (Petitioner) dated romantically with one another in a dating relationship. Dated romantically is defined as frequent, intimate associations, primarily characterized by the expectation of affection and/or sexual involvement, independent of financial considerations;

  • The defendant (Respondent) and alleged victim (Petitioner) have at least one child in common. A child in common means either a biologically related child born of both the defendant (Respondent) and alleged victim (Petitioner), or a child that is the stepchild of either party, regardless of whether or not that stepchild is legally adopted by the child’s stepparent;

  • The defendant (Respondent) and alleged victim (Petitioner) are close family members. Close family member means that the defendant (Respondent) and alleged victim (Petitioner) have one of the following types of relationships to each other: spouse, sibling, parent/child, stepparent/child, grandparent/grandchild, aunt, uncle, or cousin to the first degree.

Violence & Abuse Defined: Violence and/or abuse, as defined under California’s domestic violence statutes, means to annoy, harass, stalk, threaten, intimidate, assault, batter, or molest, whether by direct or indirect contact. This includes intentional destruction of another person’s property.

 

Note: The violence and/or abuse described by the alleged victim (Petitioner) in a DVRO petition does not have to amount to criminal conduct as defined under California criminal laws.

 

For example, if the defendant (Respondent) is alleged to have threatened physical violence against her husband, that threatened physical violence might be enough evidence to support a DVRO against wife, but that same evidence might not be sufficient to support criminal liability on wife. This is because the burden of proof required to sustain a petition in a DVRO case is much lower than burden of proof required to find that the defendant is guilty beyond a reasonable doubt in criminal court.

 

Also, the family law’s definition of certain buzz words, such as threaten, harass, stalk, annoy, etc., are sometimes different that the definition used to defined those same terms in criminal court.

Petitioner v. Respondent

For purposes of domestic violence restraining order requests, the term “Petitioner” is associated with the person who first files a DVRO against another person who is domestically related to that Petitioner. The term “Respondent” is associated with the person who is defending (responding) against the Petitioner’s allegations. This is true even if the party’s respective roles are reversed on related family law legal issues.

For example, if wife files for a divorce from her husband, and subsequently, husband petitions the court for a domestic violence restraining order against wife, then wife is the Petitioner for purposes of the couples’ divorce, but husband is the Petitioner for purposes of his DVRO request.

Note: When a request for domestic violence restraining order is made after the family law court has already established a case number related to a different family law matter between the parties (i.e. divorce, legal separation, stepparent adoption, etc.), then the court may combine the two cases to be heard under one case number, but the court is not required to combine the cases and it is not unusual for two different judges to hear the two different matters. This is true even when the issues related to DVRO are similar to issues raised in the party’s other cases.

 

Also, a family court judge hearing more than one type of legal issue filed under two or more case numbers may realign the party’s designation as either the Petitioner, or as the Respondent. This is because the court does not recognize any legal advantage to a party simply because he or she was the first to file a petition in court.

Common Orders: Judges may make any domestic violence restraining order reasonably necessary to protect the alleged victim. Common DVRO include:

Stay Away Order: A stay away order is a command issued to the Respondent that informs the Respondent that he or she must maintain a minimum physical distance from the alleged victim. The distance the Respondent is ordered keep away from the Petitioner varies depending on the circumstances and facts of the case, but a stay away order of at least one hundred (100) yards is a common stay away order.

No Contact Order: A no-contact order means no physical or communication contact with the alleged victim. For purposes of a domestic violence restraining order, contact and/or communication means any communication through social media (i.e. Facebook, Twitter, Instagram, etc.), traditional communication (telephone, email, text, in-person communication, letter, etc.), communication through court-ordered services (i.e. talking parents, mediators, etc.), and any communication through another person by any methods (i.e. message delivery through friends or family, etc.).

Note: Communication to and from a Petitioner by the Respondent’s lawyer is not usually restricted by the court; however, the Petitioner may request no communication from Respondent’s lawyer, or limited communication from Respondent’s lawyer by certain methods (i.e. email communication only, USPS mail only, etc.) and the Respondent’s lawyer should comply with a no communication or limited communication request made by Petitioner. In practice, a “no-communication” through lawyer request only deals with communication(s) originating from Respondent. Legal communication required by law, such as serving opposing party with legal documents, cannot be limited.

No-Negative Contact Order: A no negative contact order simply means that the Respondent may contact or communicate with the Petitioner, but that contact or communication must be for a pre-determined limited purpose and the communication may continue only so long as the Petitioner agrees. No negative contact orders made in family law court must be related to a DVRO. In other words, there is no no-negative contact order that is enforceable against the Respondent unless that no-negative contact order is made a part of a domestic violence restraining order.

 

For example, if the parties agree to a no-negative contact order as a term in a marital settlement agreement (MSA), and there is no underlying DVRO in the couple’s case, then the no-negative contact order term in not enforceable.

Relinquish Firearms: An order to relinquish, sell, or store a firearm is a mandatory order issued against a Respondent in a DVRO case. The court and the Judicial Council of California provide forms and information related to firearm relinquishment.

Phone Number Transfer: The family law judge may order that the Respondent to a DVRO transfer his or her phone number to the Petitioner. Modernly, this is not a common court order because most persons have their own phone and independent phone number. Nevertheless, a family law court has the power to make this order as part of a domestic violence restraining order petition.

Residence Exclusivity Order: The family law court may order the Respondent to leave his or her own home or residence if the Respondent and Petitioner were living together at the time of the Petitioner’s filing for DVRO. In fact, the court has the power to order the Respondent to continue making the mortgage or rent payments on a residence even if he or she was ordered to leave his or her own home. Of course, under this scenario, the court will not likely order the Respondent to continue for a long period of time under such harsh orders unless the interest of justice require such an order.

Audio Recording: A judge making orders as part of a domestic violence restraining order request may allow the Petitioner to record the private communication between the Petitioner and Respondent.

Note: Without the court’s permission, or without other exception to the law, a person does not have the right to record another person without the recorded person’s consent. This is known as illegal audio recording, which is a crime under PC 632 and a civil wrong. There are several exceptions to the illegal audio recording law, but if no exception applies, the Petitioner and/or Respondent to a DVRO request who uses unauthorized recordings to make or break his or her case could inadvertently confess to a crime upon filing of the required documents.

 

For more information on whether or not an audio recording is an unauthorized audio recording, and therefore a crime, contact our divorce and family law attorneys for a free case review.

Order for Restitution: A family law judge hearing a domestic violence restraining order request may order the Respondent to pay restitution to the Petitioner. Restitution is an amount of money paid to the Petitioner in order to restore the Petitioner to level he or she enjoyed before the domestic violence (i.e. payment for property damage, payment for therapy sessions, payment for necessary residence relocation, etc.).

Spousal Support: Spousal support (alimony) may be ordered as part of a domestic violence restraining order. This is true even if the Petitioner and Respondent have not yet filed for a dissolution of marriage (divorce) or legal separation.

Child Support, Child Custody & Child visitation: A judge hearing a DVRO request may also make orders regarding child support, child custody, and child visitation (parenting time).

Note: For court orders related to child support, child custody, and child visitation, a Petitioner must first establish the parentage of the Respondent. Parentage is usually established by showing the parties were married at least nine (9) months before the child was born (presumed parentage), or by filing a concurrent paternity suit (parentage action).

Attorney Fees: A Petitioner may seek attorney fees from the Respondent as part of his or her domestic violence restraining order petition. Attorney fees request require strict procedural requirements before the Petitioner may be granted an award of attorney fees. Also, a request for attorney fees, like all other requests in DVRO petitions, is not a guarantee that the Petitioner will be granted that award.

Mandatory Classes: A family law judge may order the Respondent to attend domestic violence classes as part of a child custody case related to DVRO.

Supervised Child Visitation: Supervised child visitation is a common court order made in DVRO cases that involve child custody and/or child visitation. Supervised child custody orders are modifiable if the circumstances that called for supervision change and the change in circumstance justifies an order for non-supervised child custody.

Mediation: A DVRO request that involves child custody or child visitation orders will usually result in the parties’ both being ordered to attend family court mediation. Mediation is intended to assist the parties resolve their child custody and child visitation concerns before the court makes orders. Mediation in DVRO cases is usually separate (parties attend mediation at different times).

No Travel Order: The court may make no-travel orders related to child custody and child visitation issues related to domestic violence restraining order requests. The no travel order pertains to the Respondent's travel with a protected child. Travel without a child is not usually a necessary family law court order related to DVRO.

Return Property: The DVRO court may order the Respondent to return property to the Petitioner or other third party.

Protection of Pets (dogs, cats, etc.): A domestic violence restraining order request may be used to protect a family pet (i.e. dog, cat, bird, etc.), so long as the pet is not the primary subject of the DVRO. A human being must be the primary subject of the DVRO protection.

Paternity Suit: As stated above, paternity (parentage) may be established as part of a domestic violence restraining order. In fact, without establish parentage, a DVRO must be based on at least one other factor that demonstrates a domestic relationship between the Petitioner and the Respondent (See above).

Non-Party Protection: The Petitioner must establish a domestic relationship to the Respondent before a DVRO court will make orders related to the DRVO. However, once the Petitioner establishes this domestic relationship, he or she may seek protection for another person who is not domestically related to the Respondent.

For example, if wife is seeking a DVRO against her former husband (a domestic relationship), then wife might also be allowed to include a request for order that are intended to protect her new boyfriend.

Note: Whether or not the court allows a non-domestically related person to be added to the Petitioner’s request for DVRO protection is determined on a case by case basis. Ordinarily, the non-domestically related person must file his or her own non-domestic violence restraining order or civil harassment restraining order (as opposed to latching onto the Petitioner’s petition).

Collateral Punishment & Penalties: Domestic violence restraining orders that are levied against the Respondent could result in collateral punishment and penalties. These punishments and penalties include, but are not limited to, the following: loss of a license to practice a profession (i.e. doctor, dentist, lawyer, etc.), loss of reputation, loss of immigration status, civil lawsuits, loss of employment, loss of adoption rights, loss of the right to possess a firearm, and more.

Emergency Protective Orders (EPO): If a person requires emergency protection the police should be contacted without delay. If the police believe emergency protection is needed the police may serve an emergency protective order (EPO) on the defendant.

An EPO is the same as a temporary restraining order and an EPO is enforceable by the contempt power of the court; however, EPOs only last a few days before they expire. EPOs are intended to give the victim time to go to court to file a temporary domestic violence restraining order. EPOs are not valid if the defendant is not personally served with the EPO.

Temporary DVROs: A temporary domestic violence restraining order is a court order, issued by a civil or family law judge, which temporarily restrains the defendant's conduct. Temporary domestic violence restraining orders are similar to EPOs except that the orders come from a judge and last up twenty-one days, or until an evidentiary hearing.

Evidentiary Hearings: An evidentiary hearing is court appearance where the Petitioner and Respondent may present evidence in favor of his or her case or defense and after formal notice of the hearing was given to the Respondent so that the Respondent may have an opportunity to respond to the Petitioner’s allegations. 

Formal Notice Usually Required: Formal notice means that the defendant was personally served a copy of the request for a domestic violence restraining order at least five days before the date set for the hearing. Any person over eighteen years of age, who is not a party to the case, may serve a request or response. In emergency situations, formal notice requirements may be reduced to one (1) day notice (ex parte emergency hearings [See “Ex Parte” below]), or no advance notice (where notice to Respondent would likely lead to a person’s physical harm).

Continuance Request in DVRO Cases

A Petitioner has limited options for a continuance of a DVRO hearing. This is because the Respondent has a right to a speedy trial regarding the allegations. On the other hand, the Respondent may usually have his or her request for a continuance granted where the request is made so that the Respondent may have more time to prepare his or her response or to retain a lawyer.

Cross-DVRO Requests: It is not uncommon for each party to a file for DVRO against the other party. As stated, the litigant who files his or her DVRO first is usually, but not always, called the Petitioner. There is no legal advantage to being either the Petitioner, or the Respondent in a domestic violence restraining order case. Also, it is possible for one party to have his or her DVRO granted, or granted in part, and the other party to have his or her DVRO denied, or denied in part. In other words, there is no requirement that cross-DVRO filings both be granted, or both be denied.

Procedure for Filing for DVRO: Domestic violence restraining orders usually start with an alleged victim (Petitioner) filing two requests in family law court. The first request is for the court to grant temporary domestic violence restraining orders. The second request is for the court to hear the first request at an ex parte hearing. The same family law forms are used to make either request. In practice, most litigants file for emergency domestic violence restraining orders (ex parte) with either very little formal notice (“day before notice”), or no advance formal notice, to the Respondent.

After a DVRO hearing, either heard on an ex parte basis or not, the court will usually make temporary orders and thereafter set the matter for an evidentiary hearing within a few weeks. 

Ex Parte Hearing: “Ex Parte” means a request for an emergency hearing, which is to be heard the next business day, with no formal notice to the Respondent (informal notice only), in order to establish immediate orders of restraint against the Respondent, and which is necessary to prevent imminent and irreparable danger to the victim.

Temporary DVROs may be granted at an ex parte hearing and without an evidentiary hearing if a victim shows a need for the emergency order and no apparent falsity in the allegations or evidence is presented at the hearing.

Informal Notice: Informal notice in DVRO cases means that orders may be made against a defendant even if the defendant was not made aware of the court hearing until the day before the hearing and regardless of whether or not the defendant is present at the hearing or is present but has had insufficient time to prepare. Informal notice is usually accomplished by a phone call to the Respondent that informs him or her that a DVRO hearing will be held within a few days.

Note: Not every request for a temporary domestic violence restraining order, or a request for an ex parte hearing, is granted. However, even if a temporary DVRO request is denied, or an ex parte hearing is denied, or both, a judge may still hold a subsequent evidentiary hearing for a permanent DVRO. If child custody and/or child visitation (parenting time) issues are to be resolved before the next hearing date, the court will ordinarily order that the parties attend mediation.

Permanent DVROs: A permanent domestic violence restraining order is a restraining order that lasts from one to five years; however, in some cases, a domestic violence restraining order may be renewed for longer. A permanent domestic violence restraining order may only be issued if the defendant receives formal notice (See above). 

Note: For permanent domestic violence restraining orders, if defendant is formally noticed but does not attend the hearing, then he or she will likely have orders made against him or her. If the victim does not attend the hearing the case is usually dismissed or “taken off calendar.” A DVRO case that is “taken off calendar” means that the court has not dismissed the Petitioner’s case, but rather, the court leaves the case open in case the Petitioner wishes to proceed in the future.

Children & DVROs: As stated, a domestic violence restraining order may include protection for a victim's close family members. This is true even if the victim's close family members are not facing direct threats from the defendant and even if the victim's close family members are not themselves closely related to the defendant.

Note: Restraining orders, domestic or otherwise, should be kept with the victim at all times. Copies should be filed with relevant entities (school, day care, doctor, employer, etc.).

Required DVRO Legal Forms: Legal forms required in domestic violence restraining order cases are provided by the Judicial Counsel of California.

Caution: Domestic violence restraining order request forms do not provide information on how the victim or defendant should describe any abuse or defense in a declaration. For the alleged victim, always be truthful and descriptive, but be aware that any information stated in a declaration may be used against either side in family or criminal court. A Respondent will rarely state a defense beyond general denials without consulting a family law attorney familiar with criminal defense or vice versa.

Also, domestic violence restraining orders forms do not provide information on the following: rules of court, legal procedure, rules for introducing or excluding evidence (photos, texts, emails, phone records, medical records, recordings, etc.), rules for examining and impeaching witnesses, etc. Judges are not lenient with the rules of law and legal procedures just because a non-attorney is unaware of them.

DVRO v. CPO

A CPO is a “criminal protective order.” A CPO is a type of restraining order issued in criminal court. CPOs are filed against defendants in criminal court where allegations in a DVRO are essentially mirrored in criminal court.

For example, a person who secretly follows his ex-wife without consent or legal justification could face stalking allegations in both family law court and in criminal court. This is because stalking is a type of violence or abuse that could sustain a domestic violence restraining order, and it is also a crime under California penal code section 646.9 [Stalking].

Note: It is not a violation of Double Jeopardy Law to issue domestic violence restraining orders against a Respondent who was criminally prosecuted for the same conduct that serves as the basis of Petitioner’s DVRO request, and vice versa. Also, where DVRO and CPO conflict, the CPO controls. The same is true for juvenile dependency order issued in juvenile dependency court (CPO controls unless otherwise stated in the CPO).

For example, if father is allowed to have supervised visitation with his child as part of a juvenile dependency court order, but a conflicting criminal court CPO does not allow father to visit his child until further notice, supervised or otherwise, then the criminal court’s CPO controls and father may not have supervised visitation with his child.

Preparing for DVRO hearings: Arrive early to court; long lines at secured entrances and a lack of parking cause tardiness. Bring three copies of all paperwork filed and served, including copies of evidence you intend to present at court (photos, text printouts, emails, phone records, video or audio recordings, etc.). Inform the court's deputy if you are afraid of the opposing party and request an escort if you feel threatened.

Note: If you do not have a family law attorney to speak for you, you should considering practicing your strongest arguments in a mirror with an understanding that a judge will not likely entertain more than few minutes of argument at an ex parte hearing. Take notes at the DVRO hearing and do not interrupt the judge or the opposing party (legal objections aside). Business dress; this means none of the following should be worn: shorts, tank tops, sandals, spaghetti straps, low cut shirts or skirts, heavy jewelry or heavy makeu.   

Defense in DVRO cases: The defendant must be given an opportunity to respond to a victim's request for domestic violence restraining order and no permanent restraining order may be made against him or her unless the alleged victim proves, by clear and convincing evidence, that the defendant committed the alleged threats or abuse. This burden is relaxed at ex parte hearings for temporary domestic violence restraining orders (see above).

Caution: Never attempt to defend a request for DVRO without a family law lawyer familiar with criminal defense, or vice versa. Remember, the allegations in most DVRO requests allege facts that can also support criminal charges.

 

For example, the following are common criminal charges related to the accusations in many request for DVROs: stalking, battery, assault, domestic batteryinflict corporal injury on spousecriminal threatsannoying phone callsvandalismfalse imprisonmenttrespasscontempt of courtviolate a restraining orderunauthorized audio recordingresidential burglarytheft (larceny), elder abuse, etc.

Common defenses in domestic violence restraining order cases include: Insufficient evidence required to meet the burden of proof, silence, self-defense, defense of others, alibi, lack of evidence, legal justification for conduct, procedural objections to introducing evidence, (hearsay, foundation, illegal evidence, privilege, etc.), impeaching evidence or witness (bias, prejudice, memory issues, criminal history, etc.). 

Note: Silence in the face of an accusation may be an implied confession in some cases. Family law attorneys experienced in criminal defense should be retained to defend domestic violence restraining order requests. Also, a person accused of a crime has the right to remain silent and he or she should usually give strong consideration to enjoying that right to silence. If you are accused of a crime, or accused of committing violence, abuse, or neglect against any person or animal, contact a family law lawyer familiar with criminal defense, or vice versa, without delay.

Violation of DVROs: Willful violation of domestic violence restraining orders is a crime. Violating a restraining order is charged as such (PC 273.6), or as a contempt of court (PC 166(a)(4)). Criminal charges connected to domestic violence restraining orders is beyond the scope of this article. For more information, contact our family law lawyers and criminal defense lawyers for a free case analysis.

 

False Allegations: DVRO requests are sometimes filed fraudulently to gain short-lived legal advantages against a party in family court, especially in child custody cases. Perpetrators of fraud in court are often discovered and thereafter face criminal charges (i.e. perjury, filing false reports, etc.). Also, the discovery of fraud in family law court could adversely impact that party’s rights to receive spousal support.

Immigration and DVROs: Family law judges, deputies, clerks, and staff do not work with Immigration Customs Enforcement (ICE) in an effort to discover non-United States citizens. Also, family law legal forms do not inquire into a person's immigration status. However, be aware, statements made in court or on legal forms may be used against a defendant in criminal or immigration court. Non-U.S. citizens filing a request for, or a response to, a domestic violence restraining order, should speak to a family law attorney with experience in immigration and criminal defense cases. 

For further information on domestic violence restraining orders (DVRO) call our divorce & family law lawyers for a free case evaluation. Our attorneys are available Mon – Sat, from 7:00 a.m. to 7:00 p.m. to answer your question. Call today!

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