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One of the most important resources available to a person – usually a woman – who is the victim of domestic violence in California is a restraining order. Because of the prevalence of domestic violence, it behooves us all to have an understanding of the process for obtaining a domestic violence restraining order in California.
Definition of Domestic Violence in California
Before walking through the process for obtaining a domestic violence restraining order in the Golden State, you need to have a clear understanding of the underlying definition of “domestic violence” itself. Over the course of the past three decades, the definition of what constitutes domestic violence has broadened, in California and across the country.
The evolution has been from a limited definition that essentially defined domestic violence as being physical assault perpetrated on a spouse. Indeed, the moniker applied to this type of conduct was spousal assault or spousal battery.
The state of California has a two-part definition of domestic violence. First, in order for certain actions to constitute domestic violence, the must be perpetrated by an individual that appropriately can be considered one of the following:
- Current spouse
- Former spouse
- Current intimate partner
- Former intimate partner
- Person with who you’ve a child in common
- Blood relative
- Relative by marriage
The type of conduct that constitutes domestic violence is broader than what needed to be demonstrated in the past. The types of conduct perpetrated against a type of person named a moment ago sufficient to constitute domestic violence include:
- Cause physical injury
- Attempt to cause physical injury
- Sexual assault
- Attempted sexual assault
- Conduct that causes fear of immediate, serious physical injury
- Molests, attacks, batters, strikes a person described a moment ago
- Stalking
- Threatens or harasses in person or via phone calls, text, emails, or other methods
- Property destruction
- Disturbance of a person’s peace
Three Types of California Domestic Violence Restraining Orders
There are three types of domestic violence restraining orders available in California, according to the California Family Code:
- Emergency Protective Order: Issued by a court when there is a situation involving criminal domestic violence. This type of domestic violence order goes into effect immediately. It lasts only five business days or even calendar days. This type of order is utilized as a means of giving a victim of criminal domestic violence time to go to court to seek a domestic violence restraining order, which is a more permanent solution. An example of this type of order is when a husband has been arrested for physically assaulting a wife or (vice versa).
- Temporary Restraining Order: A temporary restraining order is also known as an ex parte restraining order. This type of order is issued when a person needs immediate protection in a situation involving domestic violence. It is issued on a temporary basis and without the benefit of a hearing before the court. A temporary restraining order, or TRO, lasts for up to 15 days. A full court hearing is scheduled during this time period. Because this temporary order is ex parte, the alleged abuser doesn’t need to be present in order for a person seeking this protection to get a TRO.
- Permanent Restraining Order: A permanent restraining order is issued following a full court hearing, a proceeding the alleged abuser has the right to attend and to participate in. A permanent restraining order in a domestic violence case can remain in force for up to five years. If necessary, the person granted this type of protection can return to court near the end of the term of the order to seek to have the time period extended if the facts and circumstances warrant additional time.
Steps to Ask for a Restraining Order
If you’re the victim or target of domestic violence, you have the right in California to seek a domestic violence restraining order. The first step in obtaining a domestic violence restraining order is to fill out the forms necessary to obtain this protection. The forms are available online here. In the alternative, you can go to the courthouse in the county where you live and obtain the forms. Your local court is likely to have a family law facilitator or a self-help center through which you can obtain the forms necessary to start the process to obtain a domestic violence restraining order.
Once the forms are filled out, they are presented to a judge assigned to deal with requests for domestic violence restraining orders. Because of the urgency of these types of matters, there will be a judge in the courthouse available to you to consider your request promptly. Oftentimes this is called the “duty judge.” The clerk’s office, family law facilitator, or someone in the self-help center will direct you on how and where to access a judge to review your forms and issue what is known as a temporary restraining order.
Assuming that you demonstrate the need for immediate protection, a judge will issue or sign a temporary restraining order, as described previously. Unless it is patently obvious that there is no grounds for protection, a judge will err on the side of caution and issue a TRO.
A court hearing date is scheduled within a 15-day period of time. The judge directs that the temporary restraining order be served on the alleged abuser. A summons is also served on the alleged abuser, a document that indicates when a court hearing will be held on the matter of the restraining order. You do not serve or give the temporary restraining order to the alleged abuser. That is a task for someone in the sheriff’s office.
The next step in the process is the court hearing about the restraining order. As noted previously, it is at this proceeding that a permanent restraining order can be entered, a court decree that can last up to five years if not renewed for additional time.
In a considerable number of cases, the parties agree to enter into what is called an agreed restraining order. If that occurs, a formal hearing becomes unnecessary. The court hearing date may still occur because the parties to the case appear before the judge to let the court know of their desire to enter into an agreed permanent restraining order.
If there is no agreement on a permanent restraining order, a formal hearing occurs. During the hearing, both parties have the opportunity to present evidence and make arguments before the court about whether or not a permanent restraining order should be issued by the court.
If the alleged abuser doesn’t show up for the hearing, the judge will nearly always issue a permanent restraining order. If the person seeking a restraining order fails to show up for the hearing, the case likely will be dismissed. The one exception to dismissal is if the court believes the person originally seeking a restraining order is being threatened or coerced not to proceed with the case.
