In California, there are various types of protective orders available in both criminal and civil law. In Family Law, protective orders are available in the form of Domestic Violence Restraining Orders (known as a “DVRO” for short). This article will provide a simple overview of the basic process by which a DVRO is obtained.
Who can get a DVRO?
A DVRO is available to protect individuals from those with whom they have a close relationship. These relationships include immediate family members, current or former spouses (or domestic partners), current or former boyfriends/girlfriends, parties with children together, current or former cohabitants, and close relatives within two degrees of consanguinity (stated simply: children, parents, grandchildren, grandparents, and siblings). Under California law, you and the person against whom you are seeking the restraining order (known as the “restrained party”) must fall into the one of these relationship categories to request a DVRO.
If you do not qualify for a DVRO, there are other protective orders that may be available to you, namely a Civil Harassment Restraining Order. But those options are beyond the scope of this article. A quick internet search, however, should point you in the right direction.
Who is protected by a DVRO?
The person requesting the DVRO is known as the “protected party.” You may also request protection for close family members or individuals living with you (known as “other protected parties”). Of note, you will have to explain why these other parties need protection under the circumstances.
Do I have to be the victim of physical violence to get a DVRO?
The short answer is: “No.” Though the name may seem to imply protection only from actual physical violence, California law expands the definition of “abuse” (at least in terms of Family Law) well beyond physical abuse. If a person does any of the following, you may be able to obtain a DVRO against him or her:
1. Causes (or tries to cause) you bodily injury;
2. Sexually assaults you;
3. Causes you fear that you (or another person) is in immediate danger of serious bodily injury;
4. Molests, attacks, strikes, stalks, threatens, batters, harasses, or falsely impersonates you;
5. Destroys your personal property; or
6. Otherwise disturbs your peace.
The DVRO process is essentially a 2-Step process. The level of evidence you must show to establish that one of these occurred (the “burden of proof”) differs depending on where you are in the process. This is discussed in greater detail below.
Step one- The DVTRO
Before obtaining a permanent restraining order (the DVRO), you must first obtain a temporary restraining order called a Domestic Violence Temporary Restraining Order (known as a “DVTRO” for short). The purpose of the DVTRO is to protect an individual from a potentially imminent threat of abuse.
Given the potential imminence of danger to the requesting party, an individual may request a DVTRO with little or no notice given to the other party. This is known as submitting the request “ex parte.” Generally speaking, the requesting party may give as little as 4-hours notice of his or her intent to request a DVTRO. In special circumstances (e.g., fear of retaliation), no notice may be required.
There are particular forms which you must fill out to request the DVTRO. Among other information, the forms will ask you to state the parties involved and the reasons you are requesting the restraining order. You must also include a written statement describing the abuse you believe warrants a DVTRO. This is known as your “Declaration,” and you submit it to the Court under penalty of perjury. Unless no notice was required due to special circumstances, the other party may also appear and submit a “Responsive Declaration” for the judge’s review.
The Declarations are important because only on rare occasions will a judge actually speak to either party at the DVTRO stage of the process. Rather, the judge will look only at the paperwork and Declarations submitted to determine whether enough evidence exists to grant a temporary restraining order. This is where the burden of proof comes into play. Based on your submitted paperwork, the judge only needs to determine that there is “reasonable proof” that abuse has occurred in order to grant the DVTRO. This is a very low burden to overcome. The logic behind requiring less evidence at this stage of process boils down to a simple balancing test: public policy favors avoiding potential acts of domestic abuse over avoiding a temporary restriction of the restrained parties due process rights. As discussed in the following section, however, the key work here is “temporary”.
Usually, you will receive the judge’s decision on the same day you submit the paperwork, but always check with your local court to ensure this is the case. If the judge grants the DVTRO, you must serve the restraining order paperwork on the now-restrained party. You will also receive a hearing date on which you must return for the judge to determine whether a permanent restraining order (the DVRO) should be granted. The hearing will generally be within 21 days, to minimize the amount of time the restrained party is restricted before going before a judge. The DVTRO is effective until the hearing date.
Step two- The DVRO Hearing
Unlike the DVTRO, the DVRO hearing may not take place “ex parte.” While the ensuring the safety of the protected party took priority when the restraining order was temporary, if the judge grants the restraining order at the hearing, it will be “permanent” (usually no more than 3 years). Therefore, the restrained party’s right to be heard and have his or her day in court is the prevailing public policy consideration at this stage of the process.
Importantly, if the protected party does not appear at the hearing, the DVRO request will automatically be dismissed. Do not miss the hearing.
At there hearing the judge may not rely solely on the declarations submitted to the parties. Rather, the proceeding is what’s known as an “evidentiary hearing.” Think of it as a mini trial to determine if the temporary restraining order should become permanent. Each side will have a chance to present his or her case, put forward witnesses, photos, and other evidence, and speak to the judge. After hearing both sides, the judge will make his or her decision.
Since the DVRO is permanent, you must prove the abuse with a higher level of evidence. To grant the DVRO the judge must find by a “preponderance of the evidence” that there are grounds to grant the restraining order. In simple terms, the judge must find at least 51% of the evidence weighs towards granting the order. So be prepared to present whatever evidence you have to support your case.
If the judge grants the DVRO, the order becomes effective immediately. The DVRO also becomes a part of a nationwide law enforcement database, enabling police to enforce the restraining order. The restrained party must abide by the terms of the restraining order or face potential criminal and civil consequences. Again, DVRO’s are usually issued for 1-3 years, but may be issued for up to 5 years at the judge’s discretion.
While this page is meant to be informative, it is in no way intended as legal advice. The DVRO process involves very specific deadlines and nuances that must be adhered to in order to avoid delay or adverse consequences, whichever side you are on. This can make the process daunting for some. Therefore, if you have additional questions regarding the DVRO process, you should seek the advice of a licensed Family Law attorney as soon as possible.