Domestic Violence Restraining Order (DVRO)

A.??? General Definition.

The Domestic Violence Restraining Order (DVRO) is the most widely known and widely used type of restraining order. The DVRO is used, and sometimes abused, in many types of family law cases whether the persons were married or unmarried, have children together or did not have children, or are somehow related by blood or marriage. Occasionally, you will see these restraining orders as standalone actions with no divorce or paternity action pending. You will even see DVROs between parties with a remote familial relationship. Specific instances and the parties subject to the DVRO, also known as “jurisdiction," will be discussed in the next newsletter.

Typically, the party filing the request for the restraining order is called the petitioner/protected party, and the party responding to the allegations is called the respondent/restrained party.

A DVRO is a creature of Family Code §6200. The DVRO restrains one party from contacting, stalking, or harassing another. A DVRO is a one-way order that only restrains the receiving person. In other words, the protected party/petitioner, who filed for and received either a temporary or permanent order, may contact the restrained party/respondent, the party subject to the order. Still, the restrained party may not contact the protected party.

PRACTICE POINT: Many parties and attorneys believe that once a restraining order is issued, either permanent or temporary, all persons, both the Petitioner and Respondent, are restrained from contact with one another. This belief is untrue. The party subject to the order is the only party restrained.??

A DVRO allows the protected party to call law enforcement if the restrained party comes within a certain distance from them, their place of work, etc. The restraining order can also include the children or relatives living with the protected party.

B.???? The Process.

The basic steps followed in a typical Domestic Violence Restraining Order case are as follows:

(1) a petition requesting the restraining order is filed;

(2) the judge either grants a Domestic Violence Temporary Restraining Order[1] (DVTRO) or denies the temporary order and a court date is;

(4) the other party is served;

(5) a trial takes place, or a settlement reached; and

(6) a permanent protective order is either issued[2] ?(DVRO) or denied.

The issuing or denying of a Domestic Violence Temporary Restraining Order (DVTRO) is usually done “on the paperwork” the Petitioner submits to the court. In other words, once a party files the petition, the judge reviews it in their chambers and either grants or denies a temporary restraining order. If denied, the judge must provide the reasons for the denial.[3] Occasionally, the court will have a hearing before the temporary order is issued, but that is rare. A DVTRO is not a permanent order and is only valid until there is a hearing/trial on the permanent Domestic Violence Restraining Order (DVRO) unless there is a continuance.

When the court denies a temporary restraining order, the Petitioner still has the right to a hearing (a trial).[4]? If the Petitioner wants to proceed with their case, they must still serve the other party. Many parties do not realize this and give up on their case.? ?

CASE NOTE: I represented a party in a case where the temporary order was denied, but Petitioner opted to go to trial anyway. The Respondent sent the Petitioner over 1000 emails and texts between being served with the papers and the trial. At trial, the judge granted a permanent order ruling that the unwanted emails and texts constituted harassment that rose to the point of domestic violence. The judge ruled that the Respondent should have known that by filing and serving the paperwork, although denied, the Petitioner did not want the Respondent to contact her.

After the Petitioner files a petition and before the trial, the Petitioner and Respondent may want to conduct written discovery, issue subpoenas, or make Public Records Requests. “Discovery” is a term for getting documents, answers to questions, or legally requested items from the opposing and third parties. This process is done case-by-case due to statutory restrictions and time constraints. Utilizing discovery techniques may assist the Petitioner in proving their case or the Respondent in defending against the Petitioner's allegations.? ?

PRACTICE POINT: The restrained party is entitled to one continuance as a matter of right.[5]? Suppose you are, or represent, the restrained party. In that case, you may want to exercise this right if there is a potential criminal case against you (5th Amendment issues) if you are unprepared, or if you want to perform discovery.

PRACTICE POINT: If you are, or represent, the moving party (Petitioner), you are not entitled to a continuance. You must take this into account when preparing for trial, and you must be ready to proceed. There are always emergencies that may give rise to "good cause" for a continuance, but it will be up to the judicial officer to make the determination.[6]

Trial in these matters can take anywhere from an hour to days to weeks. Sometimes, you will not know until the case begins. Many times, due to court unavailability, the trial gets continued. When this occurs, you must prepare to be in court daily to wait for court availability unless the parties mutually agree to a continuance.

Other problems or issues may arise, leading to deviation from the timeline mentioned above. Therefore, it is always good to expect the unexpected. We will discuss these additional issues in the following chapters.

C.??? Standard of Proof at Trial:

To understand what you must prove to have a DVRO issued, you must first understand the three (3) different standards or burdens of proof required for civil and criminal cases.??

The highest standard of proof is "beyond a reasonable doubt ." Criminal cases use this standard. This standard requires the highest burden on the person trying to prove their case. The standard is not beyond all doubt but beyond "reasonable doubt."??

The second standard of proof is "Clear and Convincing Evidence ."Civil Harassment Restraining Orders and Workplace Violence Restraining Orders use this standard of proof. The burden of proof for this standard is between "Beyond a Reasonable doubt" and "Preponderance of the Evidence ."In practical terms, this standard means that if the other side has one witness, you need two or some admissible indisputable evidence.

The third and lowest standard of proof is the “preponderance of the evidence” standard. This standard carries the lowest burden of proof. With this standard, you only must prove your case to get a hair above 50/50. Most civil cases, including Domestic Violence Restraining Orders, use this burden of proof.

D.??? CLETS and Consequences:

A DVRO and all the restraining orders mentioned previously carry with them possible life-altering consequences. Namely, if granted, they are input into the California Law Enforcement Telecommunications System (CLETS). CLETS is the computer network that connects public safety agencies across the state to criminal histories, driver records, and other databases. Once a Domestic Violence Temporary Restraining Order (DVTRO) is issued, the restrained person must turn over their firearms to the police or a licensed firearms dealer for holding until there is a trial in the matter.[7]? If a permanent Domestic Violence Restraining Order (DVRO) is issued, the person may never see their firearms again.

These orders can be devastating. If the restrained party is in law enforcement or the military, they may lose their job if their job requires them to carry a firearm. Some other employers also do background checks and will take action to terminate employees if a CLETS order appears. There is a limited employment exemption requiring specific court findings.[8]

If the restrained party pays spousal or child support, granting an order may result in the protected party or a child not receiving support. The court may order support, but there may be no realistic way of obtaining it if the restrained person loses their job.

CASE NOTE: I had one case where I represented the restrained party, and just before trial, the protected party approached me, stating that she wanted the restraining order dismissed. She knew her husband would be discharged from the military if the court granted a permanent. The court dismissed the case with an agreement from the Respondent to stay away from his wife.

E.???? Why do People File a DVRO?

There are many reasons people file for DVROs. Many people file because they are physically, emotionally, financially, or mentally abused. But for every legitimate filing, there are numerous filings where people attempt to gain some strategic or financial advantage. Some advantages sought are child custody, economic, immigration status, simple vengeance, etc. These types of cases damage the actual victims of domestic violence.

Whether defending or prosecuting the matter, the practitioner on either side of the case must be aware of and on the watch for these alternative rationales for filing. These types of filing abuses undermine the system and the Domestic Violence Protection Act (DVPA). Further, they can cause the attorney or person filing for the DVRO to lose credibility and integrity. The most common tactical reason people file frivolous DVRO cases is to gain sole legal and sole physical custody of the children of the relationship.[9] People use this tactic either to gain a financial advantage, such as more child support, or just for the power achieved by having sole custody of the children.

Some people file because they want the family or another person’s residence. These people believe that if the court grants them a move-out order, forcing the other party out of the house, the court will automatically award them the house. This tactic was especially prevalent in 2022 and early 2023, when the housing market exploded, and housing prices were at an all-time high.

CASE NOTE: I represented a party in a case where his long-time live-in girlfriend filed a DVRO against him and went to the District Attorney to have a criminal case filed against him. At the first family law DVRO hearing, the Petitioner even asked the judge if she would award her the house. The judge, at that point, realized the filing was inappropriate. The court later dismissed the case for lack of prosecution, and I filed a civil action to partition the property as they were both on the title.

CASE NOTE: I had one case in which the woman filing the case was filing to get her husband's house when she had no ownership interest, and he inherited it from his mother. She even went to the District Attorney to have a criminal case filed against him. I continued the DVRO and settled the criminal case; her leverage disappeared.

Some people file for revenge against a former love interest or family member. Some people even file because they believe that they will gain their immigration status by being the victim of domestic violence.?

CASE NOTE: I substituted it into a case for trial and represented a party who, unbeknownst to me, was attempting to use the DVRO to get her immigration status.?

In sum, there are innumerable reasons people file DVROs for the wrong reasons. Your job as the filer or defending these actions is to flush out the reasons for filing. For the attorney filing a case, you must be sure that your client is truthful, or you can quickly lose at trial when they give inconsistent statements or the evidence shows they are untruthful. For the party/attorney defending the matter, you must search out and attempt to find inappropriate reasons for filing. You may accomplish this objective through the discovery process, cross-examination at trial, subpoenaing percipient witnesses, Public Records Act (PRS) requests, or through your client or a combination of these tools.

CASE NOTE: I represented a party who was accused of domestic violence, but I could easily prove that he was not even in the area at the time (his time card showed he was at work in another city at the time) and that the car petitioner described was not being driven by him. After Petitioner made her allegations at trial, she was confronted with the evidence, contradicted her declarations, and admitted that she did not see Respondent but thought it was him. At that point, she lost all credibility, and I could move for dismissal without my client ever taking the stand.

CASE NOTE: I represented a client with two DVROs filed against him by his two "baby mommas ." I quickly proved the collusion between the two women at trial because one Petitioner based her case exclusively on the same facts as the other Petitioner and admittingly was not even there. Both petitioners were trying to get custody of their child with him. One wanted their child for child support, and the other wanted their child for control. They both lost after the trial.

The above cases explain why people file and what to expect at trial.

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[1] Family Code § 6322: The court may issue an ex parte order enjoining a party from specified behavior that the court determines is necessary to effectuate orders under Section 6320 or 6321.

[2] Family Code § 6218: “Protective order” means an order that includes any of the following restraining orders, whether issued ex parte, after notice and hearing, or in a judgment.

[3] Family Code § 6320.5 (a) An order denying a petition for an ex parte order under Section 6320 shall include the reasons for denying the petition.

[4] Family Code § 6320.5 (b)? An order denying a jurisdictionally adequate petition for an ex parte order, pursuant to Section 6320, shall provide the Petitioner the right to a noticed hearing on the earliest date that the business of the court will permit, but not later than 21 days or, if good cause appears to the court, 25 days from the date of the order. The Petitioner shall serve on the Respondent, at least five days before the hearing, copies of all supporting papers filed with the court, including the application and affidavits.

[5] Family Code § 245 (a) states, “[t]he respondent shall be entitled, as a matter of course, to one continuance for a reasonable period, to respond to the petition.”

[6] Family Code § 245 (b)Either party may request a continuance of the hearing, which the court shall grant on a showing of good cause. The request may be made in writing before or at the hearing or orally at the hearing. The court may also grant a continuance on its own motion.

[7] Under Family Code §6389, a person subject to a protective order is prohibited from owning or possessing a firearm and must relinquish it.

[8] Under Family Code §6389(h), “[t]he court may, as part of the relinquishment order, grant an exemption from the relinquishment requirements of this section for a particular firearm or ammunition if the Respondent can show that a particular firearm or ammunition is necessary as a condition of continued employment and that the current employer is unable to reassign the Respondent to another position where a firearm or ammunition is unnecessary. If an exemption is granted pursuant to this subdivision, the order shall provide that the firearm or ammunition shall be in the physical possession of the Respondent only during scheduled work hours and during travel to and from the place of employment. When a peace officer is required, as a condition of employment, to carry a firearm or ammunition and whose personal safety depends on the ability to carry a firearm or ammunition a court may allow the peace officer to continue to carry a firearm or ammunition, either on duty or off duty, if the court finds by a preponderance of the evidence that the officer does not pose a threat of harm. Prior to making this finding, the court shall require a mandatory psychological evaluation of the peace officer and may require the peace officer to enter into counseling or other remedial treatment program to deal with any propensity for domestic violence.”

[9] Family Code §3044 creates a rebuttable presumption that an award of sole or joint physical custody or legal custody of a child to “a party seeking custody” who has perpetrated domestic violence against “the other party seeking custody” within the past five years is detrimental to the child’s best interests.