This article is a direct citation of the Judges Guide to Restraining Orders (2023) as written by the Judicial Counsel of the State of California.
The Domestic Violence Prevention Act
Domestic violence restraining orders, also known as Domestic Violence Prevention Act (DVPA) orders, are one of the most common restraining orders issued throughout the state. A person seeking a domestic violence restraining order (DVRO) must submit an application—Request for Domestic Violence Restraining Order (form DV-100) and applicable attachments—to request a DVRO. This one application acts as a request for a temporary and long-term restraining order. The court may issue a DVRO based solely on the affidavit (e.g., form DV-100) or testimony of the person requesting the restraining order.
Required Relationship Between Parties
To qualify for a DVRO, the petitioner must have a relationship with the respondent that falls into at least one of the following five categories:
1. Spouse and domestic partners registered with the State of California (current or former).
2. Dating or engagement relationship (past or present). A dating relationship means frequent, intimate associations characterized by the expectation of affection or sexual involvement independent of financial considerations. Even if the parties do not characterize the relationship as a “dating” relationship, the court may still find that one exists under the law. Whether the parties had sexual intercourse is probative, but not determinative in
assessing whether or not a dating relationship exists.
3. Parties have a child together, and the male parent is the presumed father.
4. Any other person related by consanguinity or affinity, meaning related by blood,
marriage, or adoption, within the second degree. A second-degree relative is any of the following: grandchild, grandparent, sibling, parent, child.
5. Cohabitant or former cohabitant. A cohabitant is a person who regularly resides in the household. A former cohabitant is a person who used to regularly reside in the household. See O’Kane v. Irvine (1996) 47 Cal.App.4th 207, 212, which limited the “cohabitant” definition in the context of DVPA restraining orders
Definition of Abuse
An act of abuse includes:
Reproductive coercion (a form of coercive control); An intentional or reckless cause/attempt to cause bodily injury; Sexual assault; Placing a person in reasonable apprehension of imminent serious bodily injury to them or another; Threatening; Battering/attacking/striking; Harassment; Stalking; Telephoning/annoying calls; Destroying personal property; Molesting; Impersonation; Disturbing the peace, which includes coercive control; Reproductive coercion (a form of coercive control), Violating a restraining order (including the custody and visitation provisions therein); Abusing the other party’s child, if that abuse disturbs the other party’s mental or emotional calm.
Coercive control
Coercive control is a pattern of behavior that in purpose or effect unreasonably interferes with a person’s free will and personal liberty.
Examples of coercive control include but are not limited to unreasonably engaging in:
- Isolating someone;
- Depriving someone of basic necessities;
- Controlling, regulating, or monitoring someone’s movements, communications, daily
behavior, finances, economic resources, or access to services; - Making threats related to someone’s actual or perceived immigration status; and
- Engaging in reproductive coercion, which includes using force, threat, or intimidation to pressure someone to be or not be pregnant; or to control or interfere with someone’s use of birth control, contraception, pregnancy, or access to health information.
A court may grant a request where no physical violence or threat of physical violence exists,
based solely on harassment, coercive control, and/or one of the other forms of abuse listed
above.
The court must consider the totality of the circumstances in determining whether to grant or deny the restraining order. This includes events that occurred after the filing of the initial petition, such as violations of a temporary restraining order or other additional acts of abuse. The length of time since the most recent act of abuse is not determinative by itself. No statute indicates that the past act of abuse must have occurred within a specified period of time
Factors That Court Cannot Consider
The court may not deny relief because the petitioner has vacated the household to avoid
abuse.
In the case of a marital relationship, the court may not consider whether or not a
dissolution (divorce), legal separation, or nullity of marriage has been filed in
determining whether or not to grant the petition.
The court may not deny a domestic violence protection order based on the existence of a
criminal protective order or the existence of other criminal or civil remedies.
Summary of Orders That May Be Issued
Below is a brief summary of every order that may be made in a domestic violence restraining order. Some orders may only be made at a noticed hearing. For a list of orders that may be made at each stage of a proceeding, see the chart in Appendix A.
A temporary restraining order (TRO) can be granted without notice to the other side. A
restraining order after hearing (ROAH) can only be made at a noticed hearing
Orders That Restrict Conduct – Other Protected People (TRO, ROAH)
On a showing of good cause the court can protect other household or family members. If the nature of the abuse includes actions (even nonviolent) that may affect the household or family members, this can be enough to meet the good cause requirement. In determining whether there is good cause to include children between the parties as protected
persons, the court considers the totality of the circumstances. While a showing of potential
jeopardy to the safety of the children is sufficient for including them as protected persons, it is not a necessary predicate for doing so. Further, witnessing abuse between the parents is enough to jeopardize the safety of the children and also constitutes direct abuse against a child by the perpetrator.
Order to Not Abuse (TRO, ROAH)
The court may grant orders that the restrained person not harass, attack, strike, threaten, assault, hit, follow, stalk, molest, destroy personal property, disturb the peace, keep under surveillance, impersonate, or block movements.
No-Contact Order (TRO, ROAH
The restrained person may be ordered not to contact any protected person. If the parties have a child together and child custody and visitation orders are in place, the court may need to order an exception to the no-contact order if parties need to communicate with each other to effectuate child exchanges or other child-related issue.
Stay-Away Order (TRO, ROAH)
The restrained person may be ordered to stay a specified distance away (listed in yards) from protected persons or places. If the protected and restrained person live, work, or go to school together, the court may want to fashion detailed orders to accommodate these situations. If the parties have a child together and the restrained person has parenting time, the court may need to make an exception for child exchanges or for the parenting time, if the child is a protected person or if the parties are both involved in the exchanges.
Property-Related Orders
Move-Out Order (TRO, ROAH)
The restrained person may be excluded from the family dwelling, the dwelling of the other party, the common dwelling of both parties, or the dwelling of the person who has care, custody, and control of a child to be protected from domestic violence for a period of time and on the conditions the court determines, regardless of who holds legal or equitable title or is the lessee. The court, however, can only order this on a showing of all the following:
1. Physical or emotional harm would result to the petitioner, anyone under the care and
control of the petitioner, or to a minor child of the parties or petitioner
2. Facts sufficiently show that the party staying in the dwelling has the right to possession
of the premises under color of law;
3. The excluded party has assaulted or threatened to assault the petitioner, anyone under the
care and control of the petitioner, or a minor child of the parties or petitioner; and
Property Control (TRO, ROAH)
The court may issue an order determining the temporary use, possession, and control of real and/or personal property and payment of any liens or encumbrances due while the order is in effect.
Property Restraint Orders When Parties Are Married (TRO, ROAH)
The court may restrain married persons from transferring, hypothecating, encumbering,
concealing, or in any way disposing of any real or personal property, whether community, Quasi community, or separate property. One exception is if either party does so in the usual course of business or for necessities of life. If the order is against one party, that party must notify the other party of any proposed extraordinary expenses and must account to the court for those expenses.
In 2005, the California Domestic Partner Rights and Responsibilities Act became effective and provides that registered and former registered domestic partners have the same rights,
protections, and benefits that are granted to spouses and former spouses. They are subject to the same responsibilities, obligations, and duties under law, whether derived from statutes, administrative regulations, court rules, government policies, common law, or any other provisions or sources of law that are imposed on spouses and former spouses.
Custody and Visitation of a Minor Child (TRO, ROAH)
The court may issue temporary custody and visitation (parenting time) only to a parent who has: The party has been determined by the court to be a parent of the child under Family Code section 7541.
Established a parent and child relationship; and Meets the federal requirements for jurisdiction.
Establishing Parent and Child Relationship
The court must determine that petitioner is a parent of the child in order to grant custody to
petitioner. If the respondent has not been established to be a parent of the child, the court may make an order of no visitation to respondent, pending establishment of parentage.
When a parent-child relationship has not been established, but a parentage action has been filed, the court may issue custody and visitation orders under the Uniform Parentage Act. The party requesting custody may establish a parent-child relationship by offering proof of any of the following:
The parent gave birth to the child.
The child is conclusively presumed to be a child of the marriage.
The child of a cohabiting married couple (including a same-sex couple) is presumed a
child of the marriage.60 Note: The rights and obligations of registered domestic partners
with respect to a child of either of them must be the same as those of spouses.
The rights and obligations of former or surviving registered domestic partners with respect to a child of either of them must be the same as those of former or surviving spouses.
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Best Interests of Child
Once the court has determined that it has jurisdiction over the child for purposes of making
custody orders, the court may issue custody and visitation orders provided that they are in the child’s best interests.
For More Information About Restraining Orders From the Judge’s Perspective, See the DVRO Bench guide