When Can I Get A Domestic Violence Restraining Order?

The Domestic Violence Prevention Act (DVPA) was established in order to prevent acts of domestic violence and sexual abuse as well as to allow the parties involved to separate for a period sufficient to allow them to attempt to resolve the causes of such violence (California Family Code §6220). California Family Code, Section 6200, et seq., lists the necessary provisions of the Act including the categories of persons protected, the types of abuse required to qualify for a protective order, as well as the types of protective orders which may be sought.

In order to determine whether you qualify for a domestic violence restraining order, it is important to ask the following questions:

How would you define your relationship with the person you seek to restrain?

Pursuant to California Family Code, Section 6211, the restrained person must be a spouse, cohabitant, or other person with whom you are involved in a “dating or engagement” relationship. Further, the relationship could be one between the alleged perpetrator of violence and his or her child, a co-parent, or a close blood relative.

What type of abuse or “showing of abuse” necessitates a domestic violence restraining order?

Family Code, Section 6300, requires “reasonable proof of a past act or acts of abuse.” Such abuse is evidenced by:

1) Recent physical violence or threats of violence

2) Harassment Behavior (i.e. – threatening, upsetting, and/or upsetting calls, emails or other correspondence)

3) Stalking behavior

4) Sexual abuse

5) Verbal abuse that is extremely severe

What types of protection can you request as part of the restraining order?

A domestic violence restraining order not only functions to separate the restrained person from the alleged victim of domestic violence, it also may be used to obtain:

1) Child Abduction Prevention Orders: If certain criteria is met indicating this type of risk, the court can issue orders which prevent travel outside the state, as well as other orders to prevent possible abduction.

2) Child Custody/Visitation Support Orders: You can request that orders be made on these issues at your domestic violence restraining order hearing.

3) Exclusion from the Dwelling: You can request that the restrained person be removed from the property even if you have no title to or interest in the property.

4) Restitution: You can request reimbursements for costs which you incurred as a result of the domestic violence, such as medical bills and other costs.

5) Batterer’s Treatment Program: After a hearing takes place, you may additionally request or the court may on its own order the restrained party to attend a batterer’s program which includes classes, counseling, and lessons geared towards domestic violence prevention.

6) Child Sexual Abuse Protective Orders: If a child is allegedly sexually abused during a custody proceeding, the court can protect the child by “any reasonable temporary steps” necessary under the circumstances presented. Courts may deem a child welfare services investigation appropriate here and will often order a custody evaluation under Family Code, Section 3118.

Lastly, in order to obtain a domestic violence restraining order, one must file either with the assistance of a family law attorney or on their own behalf, an application for a temporary restraining order with the Court. This temporary restraining order (TRO) will be available within two days of filing at which time you will receive your hearing date for a permanent restraining order which can last up to 5 years. At this hearing, the court will determine whether a permanent order should be issued based on the evidence presented and the above-described requirements. Once granted, if the restrained person violates the order, he or she may be held in contempt for this violation. However, this can only occur after the restrained party is properly served with the order.

You may also file the application on an “ex parte” basis. An “ex parte” order is granted when the facts on which the order is based indicate that “great or irreparable injury would result to the applicant before the matter could be heard on notice.” (Family Code, Section 241) This type of order, if granted, takes effect immediately.