Types of California Domestic Violence Protective Orders

Being served with a restraining order or arrested after a domestic dispute can be a profoundly stressful experience.

Your life can be disrupted instantly: you might be forced out of your home and prohibited from contacting your partner or children, necessitating significant changes to your daily routines. 

Although a domestic violence restraining order is a civil court action, its consequences are severe and can overlap with the criminal justice system.

You could face domestic violence charges for the alleged actions that led to the protective order, and violating the order itself can result in separate criminal charges.

California law is extremely strict on domestic violence. It strongly favors the accuser, which may easily leave you in the position of feeling like you're guilty until proven innocent--instead of the other way around.

If you have been accused of domestic violence, served with a protective order, and/or now face possible criminal charges, getting representation from a skilled California criminal defense attorney is a must to ensure your rights are protected. To schedule a consultation, call Eisner Gorin, LLP at 818-781-1570 or contact us online. 

What is a Domestic Violence Protective Order?

A Domestic Violence Restraining Order (DVRO) is a civil court order issued to prevent acts of domestic violence and provide a period of safety for the person requesting protection.

DVROs are issued under the authority of the California Family Code Section 6200 et seq. In a DVRO case, the court uses specific terminology to identify the individuals involved:

• Protected Person: This is the individual who requests the court's protection and alleges that they have been the victim of abuse.
• Restrained Person: This is the individual accused of abuse against whom the order is sought. If you have been served with papers, you are the restrained person.

Scope of "Abuse"

Under California law, the definition of "abuse" extends beyond physical violence. It is a broad term that can include a range of behaviors. For a court to issue a DVRO, the protected person must provide evidence that they have been subjected to actions such as:

• Physical injury or assault
• Stalking
• Threatening
• Harassing communications (by phone, text, or email)
• Destroying personal property
• Disturbing the peace of the other person

This broad definition means that even without evidence of physical harm, a court can grant a restraining order based on allegations of harassment or causing emotional distress and/or presenting a credible threat of abuse.

PC 273.5(a) felony domestic violence is defined as intentionally causing physical injury that results in a traumatic condition to a spouse, cohabitant, dating partner, or a parent of a shared child.

Who Can Petition for a DVRO?

Since DVROs provide protection for domestic violence victims, individuals who request them must have a relationship with the accused that meets the legal criteria for domestic violence.

Specifically, to qualify for a DVRO, the protected person and the restrained person must be:

• Spouses or registered domestic partners
• Divorced spouses or former domestic partners
• Cohabitants (people who live or have lived together)
• Individuals who are dating or have dated
• People who have a child together
• Closely related by blood or marriage (e.g., parent, child, sibling, grandparent)

What Are the Types of Domestic Violence Protective Orders in California?

California recognizes four basic types of protective orders related to domestic violence: Emergency Protective Orders (EPOs), Temporary Restraining Orders (TROs), Permanent Restraining Orders, and Criminal Protective Orders (CPOs).

Each serves a distinct purpose and varies in duration and the circumstances under which it is issued.

Emergency Protective Order (EPO)

An Emergency Protective Order is the most immediate form of protection available. It is issued directly by law enforcement officers who are responding to a domestic violence incident.

• Authority: Pursuant to California Family Code Section 6250, a police officer can request an on-call judicial officer to issue an EPO at any time, day or night. The officer must assert reasonable grounds to believe that the alleged victim is in immediate and present danger of domestic violence.
• Duration: An EPO is short-lived, typically lasting for five to seven calendar days.
• Purpose: Its function is to provide immediate, temporary protection to the alleged victim, allowing them time to go to court and formally apply for a Temporary Restraining Order.
• Implications: An EPO is effective immediately upon issuance. It can legally require the restrained person to leave a shared residence and mandates the temporary surrender of any firearms in their possession.

Temporary Restraining Order (TRO)

A Temporary Restraining Order, often called a DV-110, is the next step in the civil court process. It is granted by a judge based solely on the written declaration of the person requesting protection.

• Issuance: A judge may grant a TRO "ex parte," meaning the restrained person is not present and has not yet had an opportunity to present their side of the story. The decision is based on the information provided by the accuser in their application (Form DV-100), where they must declare under penalty of perjury that they face an immediate danger of harm.
• Duration: A TRO typically lasts for 20 to 25 days, bridging the time until a formal court hearing can be held.
• Process: Once a judge signs the TRO, it becomes a valid court order. However, it is not legally enforceable against the restrained person until it has been personally served upon them by someone over 18 who is not a party to the case.

Permanent Restraining Order (Order After Hearing)

A Permanent Restraining Order is the most significant type of civil protective order and is issued only after a full evidentiary hearing at which both parties may present their case.

• The Hearing: Unlike the ex parte issuance of a TRO, a permanent order requires a court hearing. At this hearing, the restrained person has the right to file a formal response, present their own evidence, call witnesses, and cross-examine the accuser and their witnesses.
• Duration: Despite its name, a "permanent" order is not necessarily indefinite. It is typically granted for up to five years. Before it expires, the protected person may request a renewal, which the court may grant for an additional five years or, in some cases, permanently.
• Standard of Proof: The legal standard for the judge to grant a permanent restraining order is "preponderance of the evidence." This means the accuser must prove it is more likely than not that the alleged abuse occurred. This is a much lower burden of proof than the "beyond a reasonable doubt" standard used in criminal cases.

Criminal Protective Order (CPO)

A Criminal Protective Order, also known as a "No-Contact Order," operates independently of the civil DVRO process. It is issued by a criminal court judge in connection with a criminal case.

If the district attorney files criminal charges for domestic violence, the judge can issue a CPO under Penal Code 136.2. This order's primary purpose is to protect victims and witnesses in the pending criminal case. A CPO takes legal precedence over any civil restraining orders issued by a family law court.

What Happens if I am Served with a DVRO?

If you're served with a DVRO, you will face immediate and significant repercussions, including being barred from contact with your accuser, forfeiting firearms (if you have them), and possibly being forced from your home.

The DVRO may also limit contact with your children, affect custody rights, impact your employment, and more.

Having a DVRO issued against you carries substantial and far-reaching collateral consequences that extend well beyond a simple "stay away" command.

These repercussions can impact your fundamental rights, your family, your home, and your career. Some of these repercussions include:

• Firearm Relinquishment: Under Penal Code 29825, individuals subject to a restraining order are prohibited from owning or possessing firearms and ammunition. You must surrender or sell your firearms within a specified timeframe; failure to comply constitutes a separate criminal offense.
• Residence Exclusion: Courts may issue "kick-out" orders requiring you to vacate your home immediately, even if you are the legal owner or tenant. These orders can be issued via an EPO or TRO before you have the opportunity to appear in court.
• Child Custody and Support: Under Family Code Section 3044, a DVRO creates a rebuttable presumption that awarding custody to the restrained party is detrimental to the child's best interest. Additionally, the court may mandate child and spousal support payments within the order.
• CLETS Entry: Restraining orders are recorded in the California Law Enforcement Telecommunications System (CLETS). This statewide database ensures law enforcement is immediately aware of the order during any encounter, which may complicate interactions with police.
• Professional and Immigration Impact: A DVRO may jeopardize professional licenses and security clearances. For non-citizens, a domestic violence finding carries severe immigration risks, including deportation, inadmissibility, or the denial of naturalization.

What Should You Do If Served with a Protective Order?

If you're served with a protective order, your actions in the immediate aftermath can significantly influence the outcome of your case. Remain calm and take the following specific, strategic steps to protect your legal rights.

• Read the Order Carefully: Upon receipt, thoroughly review all documents to understand the specific prohibitions, including stay-away distances, move-out requirements, communication bans, and firearm surrender deadlines. Comprehending these terms is crucial, as ignorance of the order's provisions is not a valid legal defense for a violation.
• Do Not Contact the Protected Person: Adhere strictly to the no-contact provisions. This includes refraining from all direct and indirect communication, including phone calls, text messages, emails, and messages sent through third parties. Even if the protected person initiates contact, you must not respond, as the order legally restrains your actions, not theirs.
• Secure Legal Counsel Immediately: The legal timeline for a Temporary Restraining Order (TRO) is short, typically 20-25 days before a formal hearing. It is imperative to retain an experienced attorney immediately to prepare a defense, file a formal response, and represent your interests at the evidentiary hearing.
• Comply Strictly with All Terms: You must fully comply with every term of the order, even if you dispute the allegations. Violating a protective order is a criminal offense under Penal Code 273.6 and can result in arrest and additional charges. The proper venue to contest the order is in court, not through non-compliance.

How to Respond and Build a Defense

The hearing for a permanent restraining order is a formal legal proceeding. Unlike the initial temporary order, which is often granted based solely on the accuser's written statement, this hearing allows you to present evidence and challenge the allegations. A strategic defense is vital to preventing the issuance of a permanent order.

Filing a Response (Form DV-120)

To contest the order, you must file a written response via Form DV-120 (Response to Request for Domestic Violence Restraining Order). This document must be filed with the court and served on the protected party prior to the hearing.

The response provides a formal platform to deny allegations, provide context, and request that the court deny the permanent order. Failure to file may result in a default judgment, as the court will issue a ruling without considering your defense.

Gathering Evidentiary Defense

Your attorney will work with you to compile evidence that contradicts the accuser's claims or provides necessary context to the judge. Common types of evidence include:

• Digital Evidence: Text messages, emails, social media logs, and voicemails can be powerful tools. For example, if the accuser claims to be terrified of you but has sent dozens of friendly or aggressive messages during the period they claim to be afraid, this can undermine their credibility.
• Witness Testimony: Identify witnesses who observed the alleged incidents or can testify to your character. Independent eyewitnesses who can contradict the accuser's version of events are particularly valuable.
• Alibi Evidence: If you are accused of being at a specific location at a specific time to harass the victim, receipts, GPS data, or work records proving you were elsewhere can be definitive.

Hypothetical Defense Strategy

Consider a scenario where an accuser claims they need protection because they fear for their safety. However, evidence shows they have continued to visit your home unannounced or initiate casual conversation after obtaining the temporary order.

Legal counsel can use this evidence to challenge the "reasonable apprehension of imminent serious bodily injury" required for many protective orders. If the accuser's actions do not align with someone who is genuinely in fear, the court may deny the permanent order.

Cross-Examination

One of the most effective tools in a DVRO hearing is cross-examination. Your attorney has the right to question the accuser under oath. Skilled cross-examination can expose inconsistencies, exaggerations, or lies in the accuser's testimony.

By highlighting these discrepancies, the defense can cast doubt on the credibility of the allegations, making it difficult for the accuser to meet the "preponderance of the evidence" standard required to obtain a permanent order.

What Happens If You Violate a Protective Order?

If you violate a protective order in California, you can be charged with a separate crime, and if convicted, depending on the circumstances and facts, you could face up to three years in prison.

A protective order is a direct command from a court. Disregarding its terms is not merely a civil infraction; it constitutes a distinct criminal offense under California Penal Code 273.6.

This law makes it a crime to knowingly and intentionally violate the terms of a valid court order. For a prosecutor to secure a conviction, they must prove that:

• A court issued a lawful protective order;
• You had knowledge of the order;
• You had the ability to follow the order, and
• You willfully violated the order.

Penalties for a Violation

The consequences for violating PC 273.6 depend on the circumstances of the violation and the defendant's criminal history. The offense can be charged as either a misdemeanor or a felony.

• Misdemeanor: A first-time violation without any aggravating factors is typically charged as a misdemeanor. The penalties include up to one year in county jail and a maximum fine of $1,000.
• Felony (Wobbler): A violation can be elevated to a felony, punishable by up to three years in state prison, if it is a second offense involving an act of violence or if the violation itself results in physical injury to the protected person. This is known as a "wobbler," meaning the prosecutor has the discretion to charge it as either a misdemeanor or a felony.

Defenses to a Violation Charge

An accusation of violating a protective order does not automatically lead to a conviction. A skilled defense attorney can challenge the charge by establishing several key defenses:

• Lack of Knowledge: A primary element of the crime is that you knew the order existed. If you were never properly served with the court documents, you cannot be found guilty of knowingly violating the order.
• Lack of Intent: The violation must be willful. If you accidentally encountered the protected person in a public place, such as a grocery store, and immediately left, it can be argued that you did not have the intent to violate the order.
• The Order Was Not Valid: The protective order itself must have been lawfully issued. If there was a procedural defect in how the order was granted, its validity can be challenged, thereby nullifying the violation charge.

Why You Need a Skilled California Criminal Defense Attorney

Domestic violence restraining order hearings are high-stakes legal battles with lasting consequences. These are not matters to handle without professional legal assistance, as the outcomes can affect your life for years.

The DVRO legal process moves with remarkable speed. From the moment a Temporary Restraining Order is served, you have a very limited time to prepare for the evidentiary hearing that will determine if a long-term order is granted.

This is not a time for uncertainty. A skilled California criminal defense attorney understands the urgency and can immediately begin building a strategic defense on your behalf.

Speak with a Domestic Violence Defense Lawyer

Our firm provides comprehensive representation, recognizing that restraining orders often parallel criminal charges. Our attorneys are equipped to manage both the civil DVRO hearing and any concurrent criminal proceedings.

This integrated approach is critical to ensuring that actions taken in one matter do not prejudice the other. For instance, testimony given at a civil hearing is often admissible in criminal proceedings.

Maintaining a unified legal strategy is essential to safeguarding your constitutional rights across all legal fronts.

At Eisner Gorin LLP, we have many years of experience defending clients in Southern California courts. We understand the nuances of domestic violence cases and how to effectively cross-examine accusers to expose inconsistencies.

We are committed to protecting your rights and securing the best possible outcome for your future. Contact our office today at 818-781-1570 or use the contact form to schedule a confidential consultation with our experienced legal team.