What is Domestic Violence?

            Under California law, domestic violence occurs when a person who is in certain relationships with another person is subject to physical abuse or threats of physical abuse.  According to statute, the relationship between the abused person and the abuser must be “intimate”, for example: married or domestic partners; are dating or use to date; live or have lived together; have a child together; or are closely related by blood (child, parent, sibling, grandparent, etc.).

            Domestic violence includes: physically hurting the other person; sexual assault; making someone reasonably afraid that they or someone else is about to be seriously hurt; behavior like harassing, stalking, threatening, disturbing one’s peace; or destroying one’s personal property.

            Domestic violence can be either physical or verbal.  For example, the use of psychological tactics to control the abused person can rise to the level of domestic violence.  Domestic violence can be towards your child or children.

Domestic Violence Restraining Orders.

            If you or your child is being abused, you can go to court and have the judge issue a domestic violence restraining order (DVRO).  A restraining order is an order by the court that commands the abuser to stop the abusive conduct or be subject to legal jeopardy.  The court can also order the abuser to stay away from you or your children, to move out of your house, and to not possess a firearm.  Also, the court can issue various orders related to visitation, custody, child support, spousal support, and the like.

            A DVRO is enforceable anywhere in California and in any other state. Once the court issues a DVRO, it is entered into the statewide domestic violence database (CLETS), to which all police have access.  However, it is recommended that you also carry a certified copy of the DVRO with you at all times.  

A DVRO Cannot:

            A DVRO is not a substitute for a divorce.  It does not end the marital relationship.  Also, a DVRO does not establish parentage (paternity).  These acts require that the appropriate legal case be filed in family court.  However, a DVRO can be made a part of either a divorce or parentage court case, or it can be filed as its own case.

Types of DVROs:

            Emergency Protective Orders (EPO) – if law enforcement responds to a report of domestic violence, the officer can have the court issue an emergency order for protection.  Judges are available 24 hours per day for this purpose.  These orders are effective right away and can last up to 7 days, giving you enough time to go to court to request a more permanent order.

            Temporary Restraining Orders (TRO) – You can go to court and request that it issue an imediate restraining order for your benefit.  A TRO can be filed ex parte which means that you do not have to notify the abuser before it is granted.  However, the TRO is not effective until the abuser has notice of its existence.  This order can follow an EPO or be filed independently by you.  Temporary orders can last between 20 and 25 days, until the court can hear your case and decide if a more permanent order is appropriate.

            “Permanent” Restraining Orders – At your hearing for your TRO, the judge can issue “permanent” orders which can last for as long as 5 years.  At the end of 5 years, you can ask that a new restraining order to be issued.

            Criminal Protective Orders and “Stay-Away” Orders – The above types of orders are all civil orders.  In certain circumstances, the District Attorney can file criminal charges against the abuser.  If so, the DA can request that the court issue protective orders.  These orders last for the duration of the criminal case, and if the abuser is found guilty, for 3 years after the case is over.

How to Get a DVRO.

            Unless it is initiated by the police (EPO) or by the DA (criminal), to have the court issue a DVRO for your benefit requires that you initiate a court process.  This requires that you file appropriate papers with the court and request a hearing.  The court does not charge you a filing fee for requesting a DVRO.  If the judge decides that immediate protection is indicated, he can make appropriate temporary orders that only last until your court date.  Whether or not temporary orders are granted, a hearing will be scheduled where you and the abuser can go to court and tell your stories.  At the conclusion of the hearing, the judge will decide whether or not permanent orders should be issued.

             While temporary orders can be issued ex parte, the abuser must be served with papers before a hearing for permanent orders.  Service can be made by any person 18 years or older who is not a party to the case, by the sheriff, or by a process server.  If the abuser does not show up for the hearing after being properly notified, the judge can still decide the case without the abuser’s input. If you do not show up for the hearing, or if no hearing takes place, any temporary orders previously issued will usually terminate that day.

What if I Don’t Qualify for a DVRO?

            In some situations, you may seek protection but don’t have the necessary intimate relationship for a DVRO.  The court can issue a Civil Harassment Restraining Order in these situations.  Where the protected person is over 65 years old, or a dependent adult from 18 to 64 years old, the court can issue an Elder or Dependent Adult Abuse Restraining Order.  Also, where workplace violence is at issue, your employer can request a Workplace Violence Restraining Order to protect you.

How to Get Help:

            Many people file for DVROs on their own, and you can get some assistance from the court to fill out the forms.  However, the court cannot give you legal advice.  In certain situations, Central California Legal Services, or other non-profit services may be able to assist you for little or no charge.  Or, you can hire your own attorney to take you through the process.  If you are being abused, we provide a 30-minute free in person or phone consultation to talk about your issues. For an appointment, contact us at (559) 438-1716.