A domestic violence restraining order (DVRO) can be obtained if there has been abuse, threats of abuse, or there is reasonable fear that abuse is likely to occur.
Abuse is NOT limited to just physical abuse and is perpetrated by and against people of all genders, sexual orientations, and other demographics. See heading "What is Abuse?" for details.
Purpose of DVROs
The purpose of a domestic violence restraining order is to protect victims from their abusers.
When granted, a (DV)RO can include a “stay away” order and/or a “move out” order if you live with your abuser. If the abuser owns any firearms, they will be required to relinquish them.
Violations of such orders are severe and can lead to the abuser being arrested.
Eligibility
You can file for a domestic violence restraining order in Family Court (as opposed to a civil harassment restraining order in Civil Court) if your abuser is a:
spouse or former spouse
cohabitant or former cohabitant (unmarried romantic/sexual partners who live together)
person you are having or have had an intimate relationship with
person you are having or had a child with
person related to you by blood or marriage
What is Abuse?
Abuse as defined by the California Family Code is quite broad and includes, but is not limited to:
physical abuse - whether intentional or reckless/"accidental"
sexual assault
fear of serious bodily injury
disturbing one’s peace
harassing, stalking, destroying property, etc.
Do You Need Evidence?
In order to be successful in obtaining a domestic violence restraining order, there must be adequate proof that abuse is occurring. Domestic violence restraining orders are criminal in nature, meaning they will go on the accused person's criminal record. Therefore, DVROs are taken very seriously.
Photos and/or videos usually suffice as evidence. Text messages, emails, witnesses, police reports, and medical records are also incredibly helpful.
It is often extremely difficult to obtain a domestic violence restraining order relying solely on the accuser's testimony.
Judges decide DVRO cases using a "preponderance of evidence" standard, meaning the burden of proof is met when the accuser convinces the judge that their claims are more likely true than not.
An experienced attorney can help guide you in collecting sufficient evidence of abuse in order to successfully obtain the DVRO you deserve.
Does the Abuse Have to Be Recent?
Legally, no, the abuse does not have to be recent.
However, the longer you wait to seek a restraining order from the time of the abuse, the less likely the court is to grant one. This is because the imminent threat of danger becomes harder to prove.
How Do You File a Domestic Violence Restraining Order?
To obtain a domestic violence restraining order, you must fill out the necessary paperwork and have it filed with the court. Although not required, including substantial evidence along with your initial filing may help simplify the overall process for you and/or avoid delays/extensions.
Link to the San Diego domestic violence paperwork:
There are often free domestic violence clinics at the courthouse where you can receive assistance in filling out the forms properly, or you can hire an experienced attorney to do it for you.
Link to information on free domestic violence clinics:
Once the paperwork is filed at the courthouse, a judge will review it and make a decision. You will be informed by court staff if you can expect the judge to come to a decision that morning or afternoon based on what time you've finished filing.
If approved, the judge will first grant you a temporary domestic violence restraining order (DVTRO), effective until a scheduled hearing date. The DVTRO will order the abuser to cease the accused actions and will grant a stay away and/or move-out order in the meantime.
A temporary domestic violence restraining order can be granted for a maximum of twenty-one (21) days at a time. If there is a valid reason for your case's decision to be postponed at the time of the scheduled hearing, the judge can schedule a new hearing and will extend your DVTRO out through the next hearing date. An inability to properly serve the accused by the scheduled hearing date, despite your documented diligent efforts, is one reason a judge may do so.
Once served, the accused has the opportunity to respond to the allegations being made against them. If they do file a response, you will likely be served with those documents prior to the court hearing.
Both the victim and abuser are to appear in court before the judge on the scheduled hearing date to present evidence on whether the temporary domestic violence restraining order should become permanent or be dismissed.
If granted, a DVRO can be put in place for up to five (5) years. After the length of the restraining order has passed, another hearing can be held on whether to extend the restraining order or to allow it to expire.
It is important for both parties to show up to the scheduled court hearings. If you, the petitioner, do not show at your hearing date, your case will be dismissed.
Serving DVRO Paperwork
You can utilize the Sheriff’s Office, for free, to have your paperwork served to the accused party. The Sheriff’s Department will complete the Proof of Service for you, and file it on your behalf. Most courthouses have a Sheriff’s Department within it, for your convenience.
The Proof of Service must be filed with the court in order for a judge to hear the case and decide if to make a restraining order permanent.
Should You Hire An Attorney?
Yes, you absolutely should have an advocate assisting you.
As emphasized throughout this article, DVRO proceedings are criminal in nature and having an experienced attorney who specifically knows how to handle domestic violence restraining orders successfully can certainly impact the outcome of your case.
At Wells-Gibson Family Law, our attorneys have ample experience with DVROs and have successfully advocated for clients to get them granted for their protection.
We know the ins and outs of the process and will work hard for the outcome you deserve.
Book your consultation with us today!