California Domestic Violence Prevention Act: A Step-by-Step Guide to Restraining Orders
The California Domestic Violence Prevention Act
Domestic violence is an escalating pattern of abusive behavior used by one intimate partner against the other in order to exercise power and control over the other partner. Approximately 2.3 million people in the United States are raped and/or physically assaulted by a current or former spouse, boyfriend or girlfriend each year. Women who were physically assaulted by an intimate partner averaged 6.9 physical assaults per year by the same partner. National Institute of Justice and Centers for Disease Control and Prevention, "Extent, Nature, and Consequences of Intimate Partner Violence: Findings from the National Violence Against Women Survey" July 2000.
In 1993, the California State Legislature responded to the staggering statistics about domestic violence and passed the Domestic Violence Prevention Act (DVPA). DVPA gives the courts the power to issue orders to restrain abusers, protect survivors and hopefully, prevent future abuse.
Legal Definition of Domestic Violence
Domestic Violence is when one person in an intimate relationship abuses the other person in the relationship.
Domestic Violence is defined in the California Family Code Section 6200, et. al.
- The law ( Section 6203) defines abuse asany of the following:
o Intentionally or recklessly to cause or attempt to cause bodily injury;
o Sexual assault;
o To place a person in reasonable apprehension of imminent serious bodily injury to that person or to another;
o To engage in any behavior that has been or could be enjoined pursuant to Section 6320.
o Section 6320 behavior includes: “molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning," and/or “destroying personal property, contacting, either directly or indirectly, by mail or otherwise" and/or “disturbing the peace of the other party."
- The law ( Section 6211) defines an intimate relationship as any of the following:
o A current or former spouse;
o Current or former cohabitant;
o Persons in or formerly in a dating or engagement relationship;
o Co-parents (parents of a child together);
o A child of a party; or
o Any other person related by blood, marriage or adoption within two degrees.
Domestic Violence Restraining Orders
If you have an intimate relationship with a person and that person has abused (or threatened to abuse) you may seek a domestic violence restraining order. A restraining order is a court order.
A Restraining Order can order the restrained person to:
o Not contact and stay away from you, your children, other relatives and those who live with you;
o Stay away from your residence, work, and/or children’s schools/daycares;
o Leave your home, even if you own, lease or rent it together;
o Follow child custody and visitation orders;
o Pay child and spousal support;
o Make bill and debt payments;
o Return or release control of certain property to you; and/or
o Stay away from or return your pets.
After a hearing, a Restraining Order (Restraining Order After Hearing- ROAH) can also order the restrained person to:
o Repay you for any losses due to violence;
o Attend Batterer’s Counseling;
o Pay your attorney’s fees and costs; and/or
o Other necessary orders.
Types of Domestic Violence Restraining Orders
- Emergency Protective Order (EPO): Is a short-term order to keep the restrained person away from the protected party, their home and/or children. ONLY available via the request of law enforcement officers from an on-call judicial officer 24 hours a day. ONLY lasts 5-7 days.
- Temporary Restraining Order (TRO): Is a temporary restraining order issued to protect you (and/or your children, property, etc.) until a hearing can be held on the matter. Upon filing for a Restraining Order, the judge may issue a temporary restraining order if s/he believes that immediate protection is needed. Only lasts 20-25 days.
- Restraining Order After Hearing (ROAH): Is a longer term restraining order issued to protect you for a long period of time. The ROAH may order the restrained person to do any the items listed above. It lasts from 3-5 years. An ROAH can be renewed an additional 5 years or permanently.
- Criminal Protective Order (CPO): Is a restraining order issued to protect you from the abuser during and following a criminal case, if the defendant is found or pleads guilty. It may last for 3 years or less. Please note, it does NOT include important child custody/visitation, support or other orders.
The Domestic Violence Protection Act Restraining Order Process
Step 1: File a request asking the court for a domestic violence restraining order.
o Forms: Ex-Parte Request for Order (DV-100) and Temporary Restraining Order (DV-110)
o Note: There is NO filing fee.
Step 2: Pick up Temporary Restraining Order, if granted by judge and information about hearing date, time and location.
o Tip: Make copies of the TRO for yourself, place of employment, your children’s schools, daycares, etc.
Step 3: Serve Other Party. The other party must be personally served with all filed papers and a blank response by a person that is 18+ and not involved in the case, 5-15 days prior to the hearing.
o Forms: The person that completes service must complete the Proof of Service Form (DV-200).
o Tip: In many counties, the Sheriff will serve the other party for free. You may also request they simultaneously serve your petition for dissolution, if you are also seeking a divorce.
-Time for service may be shortened.
-The Restrained person may file an answer, responding to the restraining order request.
Step 4: File the Proof of Service.
Step 5: Attend the Hearing.
-If the party seeking the order does not attend the hearing, the order will typically end and not be issued.
-If the restrained party does not attend the hearing, his/her explanation will not be considered.
o Forms: If the judge decides to issue a Restraining Order After Hearing (ROAH) (DV-130), it and any other necessary orders, will typically be issued the day of the hearing.
o Tip: There may be additional hearings to determine child custody, determine marital property, finalize a divorce, etc.
Step 6: Renew Restraining Order After Hearing (ROAH). A restraining order may be renewed without showing any further acts of abuse.