Domestic violence cases make up a high volume in the family and dependency court systems. Everyday restraining orders are filed in court. It is important to understand the entire restraining order process before rushing into court. Restraining orders can have very serious consequences for employment, child custody, and spousal support. For example, Family Code Section 3044, states that if you have perpetrated domestic violence that there is a presumption that the protected person shall have sole legal and physical custody. Restraining orders come up in background checks routinely. It forces gun owners to turn in their weapons.
The Domestic Violence Prevention Act is the law in the State of California. Knowing how the law is applied by the court system is essential. If you are a victim of domestic violence or have just been served with a Temporary Restraining Order, you need to know your legal options quickly. Below, I will try to recreate the entire restraining order process.
Disclaimer: The court forms required to file for a Restraining Order may have changed. You should consult an attorney before filing a restraining order. Nothing below should be relied upon by you legally. Much more goes into the proper filing of a restraining order as listed below.
Person Requesting a Restraining Order Process
Summary: 1. Obtain the proper California Judicial Council Forms and draft a written summary of the abuse. 2. Notice to the opposing party. 3 Go to court and file the TRO 4. Serve the opposing party. 5. File a proof of service. 6. Draft and Execute Permanent Restraining Order Paperwork and Take Three Copies to Permanent Restraining Order Hearing. 7. Attend Permanent Restraining Order Hearing. 8. Service of the Final Restraining Order
Disclaimer: Much more goes into the proper filing of a restraining order as listed below. These are meant as a self-help tool.
Step 1: Obtain the Proper Court Forms, Draft, and Execute
Proper Court Forms
You must first obtain the right court forms to file requesting a temporary restraining order (TRO) in family and dependency court. The forms for a TRO are not the same as the forms for a permanent restraining order. These forms can be found online on the California Judicial Council Forms Website. Simply google “California Court Forms” and the forms listed below.
Family law requires: DV-100, DV-101, DV-109, DV-110. If children involved: DV-105, DV-108. If child support requested: FL-150
Juvenile Dependency Requirements: JV-245, JV-250, and JV-205 if child visitation is permitted. This is more for attorneys because in Dependency it is almost rare for a parent to represent themselves. ‘
It is better practice to write a declaration and attach it to the forms. This way you are not wedded to the small boxes on the court form, but free to write your story under penalty of perjury.
Once you properly fill out all of the forms, sign, and date, you need to make at least three copies. The original copy goes to the court, the second copy needs to be served on the opposing party, and the third copy belongs to you.
Pointer: It is always best to consult and have a lawyer draft the forms and statements.
Step 2: Notice the Opposing Party:
Before you file your restraining order in court, as a general rule, you must notice the person you are seeking to file a restraining order against by 10:00 a.m. the day before you file it. However, if you are in fear that domestic violence will reoccur if you notice the party, a declaration must be signed stating that you did not notice the other party due to that dear. The Los Angeles Superior Court has a local court form regarding notice. Make sure before filing, that you have the proper legal document regarding notice.
Step 3: Go to Court and File the TRO
Go to court and file the Request for Temporary Restraining Order.
A Judge will then read your Request for Temporary Restraining Order and any other filed paperwork and either grant or deny your request. Either way, the case will have to be set for a court date to hold an evidentiary hearing, a hearing where witnesses can be called to determine if a permanent restraining order should be granted. At the evidentiary hearing, a judicial officer will determine if you can meet your burden for the granting of a permanent restraining order. This hearing must take place in 21 days unless the other party waives time.
Filing of your Temporary Restraining Order should be free.
Step 4: Serve the Opposing Party
You must put the restrained person on notice of the order and provide them with an opportunity to prepare for the hearing. If they are not present at the initial hearing, this would require personally of all of the paperwork that was filed with the court and a response to TRO. In addition to the paperwork you received at court, you must also make sure a DV-120 or blank response is served. The Sheriff can serve the TRO. However, you can have any person over the age of 18, serve the TRO. You cannot serve the TRO on the opposing party. A proof of service must be filled out after the TRO is served. See step 5.
Step 5: File the Proof of Personal Service
After proper service of the TRO is effectuated, the person who served the paperwork must sign a proof of service. This proof of service must be filed at least 5 days prior to the court hearing. Failure to do so may result in a continuance. You will need to fill out a JV-200 Proof of Personal Service. Remember to put down every form that was served on the opposing party and have the person who served the TRO sign with their information included.
Step 6: Draft Permanent Restraining Order Forms to Present to Court at the Permanent Restraining Order Hearing
Before attending the court date noticed on the TRO, you should draft and have ready the paperwork needed for a permanent restraining order. It is wise to bring three copies. Good Practice Pointer: Some judicial officers do you prefer for attorneys to fill in the boxes if the restraining order is granted or denied, others do not seem to mind.
Family Law: DV-130. If children: DV-140 and DV-145
Dependency: JV-255. If children: JV-205
Step 7: Go to the Permanent Restraining Order Hearing
Whether you are seeking a permanent restraining order or fighting against one, a full evidentiary hearing must be held. After this hearing, a judicial officer will decide to grant or deny the restraining order. If the restraining order is granted make sure you have the proper court forms. See Step 6.
Step 8: Service of the Final Restraining Order
Depending on whether the restrained person was present, the mode of service can be either personal service, by mail, or none at all.
If You Have Just Been Served With a Temporary Restraining Order
Time is of the essence. Contact a lawyer immediately and determine your legal options and how best to respond.
FAQ Regarding Domestic Violence
Q: What does it take to be a Victim of Domestic Violence?
A: It depends on whether you were abused and who abused you? The California Family Code defines what domestic is and who it applies to.
Domestic Violence Defined
For purposes of this act, “abuse” means any of the following: (a) Intentionally or recklessly to cause or attempt to cause bodily injury. (b) Sexual assault. (c) To place a person in reasonable apprehension of imminent serious bodily injury to that person or to another. (d) To engage in any behavior that has been or could be enjoined pursuant to Section 6320.
- (a) The court may issue an ex parte order enjoining a party from molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, credibly impersonating as described in Section
528.5 of the Penal Code, falsely personating as described in Section
529 of the Penal Code, harassing, telephoning, including, but not limited to, making annoying telephone calls as described in Section
653m of the Penal Code, destroying personal property, contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party, and, in the discretion of the court, on a showing of good cause, of other named family or household members.
(b) On a showing of good cause, the court may include in a protective order a grant to the petitioner of the exclusive care, possession, or control of any animal owned, possessed, leased, kept, or held by either the petitioner or the respondent or a minor child residing in the residence or household of either the petitioner or the respondent. The court may order the respondent to stay away from the animal and forbid the respondent from taking, transferring, encumbering, concealing, molesting, attacking, striking, threatening, harming, or otherwise disposing of the animal.
(c) This section shall become operative on July 1, 2014.
Q: Who can I get a domestic violence restraining order against?
A: Among other, spouse, someone you are or were in a dating relationship with, anyone related to you, or a cohabitant. See the legal definition below.
“Domestic violence” is abuse perpetrated against any of the following persons: (a) A spouse or former spouse. (b) A cohabitant or former cohabitant, as defined in Section 6209. (c) A person with whom the respondent is having or has had a dating or engagement relationship. (d) A person with whom the respondent has had a child, where the presumption applies that the male parent is the father of the child of the female parent under the Uniform Parentage Act (Part 3 (commencing with Section 7600) of Division 12). (e) A child of a party or a child who is the subject of an action under the Uniform Parentage Act, where the presumption applies that the male parent is the father of the child to be protected. (f) Any other person related by consanguinity or affinity within the second degree.
Q: How do I get my spouse kicked out of my apartment?
A: Restraining Order have “kick-out” provisions that under certain circumstances apply.
Q: How much does it cost to file for a domestic violence restraining order?
A: The court charges no filing fee for a restraining order
Q: How do I in addition to a restraining order get child support, child custody,Q: Can I get a domestic violence restraining order against my neighbor, who threatened me?
A: No you will need to get a civil harassment order.
Q: What effect does having a restraining order mean for custody of my kids?
A: It may have a profound impact. The Family Code has a provision in place.
- 3044 Presumption against persons perpetrating domestic violence
- Upon a finding by the court that a party seeking custody of a child has perpetrated domestic violence against the other party seeking custody of the child or against the child or the child’s siblings within the previous five years, there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to be a person who has perpetrated domestic violence is detrimental to the best interest of the child, pursuant to Section 3011. This presumption may only be rebutted by a preponderance of the evidence.
- In determining whether the presumption set forth in subdivision (a) has been overcome, the court shall consider all of the following factors
- The preference for frequent and continuing contact
- Perpetrator has completed a batterers program
- Perpetrator completed a drug or alcohol program if necessary
- Perpetrator has completed a parenting class
- Perpetrator has complied with terms of parole
- Perpetrator has complied with terms of restraining order
- Whether perpetrator has committed any further acts of domestic violence
Q: My permanent restraining order expired, how do I make it longer?
A: California Family Code 6345(a) provides a mandate for the trial court, which is that a Restraining Order, “may be renewed…without a showing of any further abuse since the issuance of the original order.” A Restraining Order should be renewed if, and only if, the court finds by a preponderance of the evidence that the protected party entertains a “reasonable apprehension of future abuse.” This is a very low legal standard.