How to File for a Domestic Violence Restraining Order in California

Written by: Elleni Conley, Advocate

Many times, when survivors of relationship or family abuse leave an abusive relationship or household, they consider filing for a restraining order. A restraining order is a court order that bars another person from coming within a certain distance of the protected party because there is evidence that the person could harm them. This can be a very confusing and stressful process for survivors as they navigate the legal system. As an advocate, part of my job is to assist survivors in understanding how to file for restraining orders and connect them to resources. Below, I describe what a domestic violence restraining order is and the process to file for one in the state of California.

The information described is NOT legal advice and is only for educational purposes. If you need a lawyer or legal assistance, you can meet with an advocate to discuss your options. They can refer you to resources specific to your case.

What is a domestic violence restraining order, and what is abuse?

In California, a domestic violence restraining order is a protective order through the family court issued to people who have been abused or threatened with abuse. A domestic violence restraining order is an order specifically for people who have been in an intimate relationship with the person who harmed them. This relationship can be a dating or spousal relationship or a relationship by blood, marriage, or adoption. Domestic violence restraining orders are not just for people who were involved romantically. Survivors can also include other people on their orders, such as family or household members.

Abuse or threats of abuse must have occurred before filing for a domestic violence restraining order. Abuse can include physical, emotional, psychological, financial, verbal, and sexual violence and stalking. Although there are many different examples of violence or abuse, this general rule can help: abuse is when a person harms or threatens to harm, another person, or their property. Abuse can be spoken, written, or done with the use of technology and is done by one person to maintain power and control over the other partner. Before filing for a domestic violence restraining order, it can help think about how these different categories of abuse apply to your situation. As part of your application, you will need to describe these incidents of abuse. If you are unsure about this, you can always reach out to an advocate to assist you.

Domestic violence restraining orders can protect people from further harm by ordering the restrained party not to contact them, move out of the home, and/or stay a certain distance away from them and their home, work, car, or school. It also can order the other party not to own guns/ammunition, not harm pets, not cancel insurance coverage for the protected party or children, and transfer ownership of the protected party’s cell phone number or account to them. Survivors can also ask the court to order the other party to attend anger management or batter’s intervention classes and pay for fees related to the abuse. Although a domestic violence restraining order can grant orders pertaining to child custody, it is not the same as divorce. It also does not establish the paternity of children.

Step #1: Completing the forms

After you have determined that you want to file for a domestic violence restraining order, your next step is to fill out the forms. The forms you will need are:

• DV-100 Request for Domestic Violence Restraining Order

Attached to the DV-100 form is your declaration. A declaration is a statement explaining to the judge what abuse has occurred and why you need a domestic violence restraining order. Including details in your declaration allows the judge to understand what has happened and why you are unsafe if they do not grant the order.

• DV-109 Notice of Court Hearing
• CLETS-001

You can find the forms online at www.occourts.org, and you can download them to your computer.

• *If you are filing in Orange County, you will need to file the L-1124 form. This form explains if you have informed the other party that you are filing for a restraining order. You should notify them four hours prior to filing (usually no later than 9:30 AM). If you do not feel safe informing the other party, you will need to provide an explanation of this form.

Step #2: Gather evidence

When applying for a domestic violence restraining order, evidence can help support that you are in danger if the judge does not grant the order. It can also verify that the abuse you describe in your declaration is true. Among many things, evidence can include photos of injuries or property damage directly caused by abuse, screenshots of text messages or emails, social media posts, phone records or voicemails, medical records, videos, and police reports. Additionally, should you have any other protective orders, such as an emergency protective order or a criminal protective order, you can submit those as evidence. You can also use witness testimony as evidence. It is common for people not to have proof of abuse. Not having evidence does not mean that the abuse did not occur. You are more than welcome to discuss this with an advocate.

Because advocates are not lawyers, they cannot tell you whether something constitutes evidence to support your case. However, you are more than welcome to discuss what types of evidence you may have and how you can securely save it. You can attach proof of the abuse with your order when filing. In the hearing, bring three copies of all evidence with you.

Step #3: File the Forms

Once you have gathered any evidence that you may have and filled out the forms, you can file it at the courthouse. In Orange County, you will need to file at the Lamoreaux Justice Center at 3431 The City Drive, Orange, CA, with the Family Clerk’s Office. There are also advocates that work in the courthouse who can assist survivors in filling out the forms. Their office is located directly across from the Clerk’s Office in Room 705.

If you want the judge to issue a Temporary Restraining Order on the same day you file the paperwork, you will need to file before 4 PM. Should you like to meet with an advocate from the Domestic Violence Assistance Program for assistance filing the forms, it is recommended that you get to the court by 8:30 AM.

Due to the COVID-19 Pandemic, you are also able to file the forms remotely. The Domestic Violence Assistance Program is continuing to provide remote assistance. If you are interested in connecting with them, you can reach out to the CARE Office for help or email them directly at dvap@waymakersoc.org. There are also legal advocates from different programs that assist survivors with filing for a restraining order. There is a list of contact information for these agencies at the end.

There is no fee to file for a domestic violence restraining order.

Step #4: From Filing to the Hearing

After you file the forms, a judge will determine whether or not to issue a temporary restraining order before your next court date. If you are filing any additional orders (i.e., a move-out order or emergency child custody order), you will also learn whether the judge granted the orders upon receiving your paperwork. An advocate from the Domestic Violence Assistance Program can also explain the orders to you. Before leaving the courthouse, you should have all the paperwork you submitted that day, and a Temporary Restraining Order, if issued. You will also have the respondent’s paperwork to be served to the other party before the permanent hearing date.

A Temporary Restraining Order (TRO) is a protective order that protects the petitioner (the person filing the paperwork) from the respondent (the person to be restrained) until the date of the hearing. Even when a judge denies a temporary restraining order, they can still issue a permanent order. If a judge issues a TRO, it is enforceable just like a permanent order; however, it will expire at the date of your hearing. If they have not been served but violate the order, you can still call law enforcement to enforce the order. They will respond and serve the respondent, but they will not arrest them for violating the order. If they violate it again after being served, it is considered a misdemeanor, and the respondent may be arrested.

You will be given the paperwork needed to serve the other person at the same time that you find out if your TRO has been granted. You must serve the respondent by the date listed on your paperwork. Someone over the age of 18 who is NOT included in the order can serve them by giving them all of their paperwork. You can also have the sheriff’s department serve the respondent. The sheriff will try three times to do this, and if they are unsuccessful, it is then your responsibility to have the paperwork served on time. After someone serves the respondent, they will need to fill out the DV-200 Proof of Service form; you will need to file this form with the court before your court date. At your court date, having or not having the DV-200 document filed notifies the judge that they have or have not been served. If the respondent is not served, the judge cannot issue a permanent order.

Step #5 The Hearing

The DV-109 Notice of Hearing form lists the date, time, and location of your hearing. Although the court is currently holding in-person hearings, you can file for a telephonic hearing. You will need to file the FL-679 form twelve days before the hearing and also serve the other person with this notice. On the day of your hearing, make sure to arrive on time or early if possible. There will be a list on the courtroom door of all the cases being heard that day. You should confirm that your case is on the list.

When the courtroom opens, check-in with the bailiff and then take a seat in the audience. The respondent may or may not be present at the hearing. In many courtrooms, the bailiff will separate the respondents and the petitioners into two separate sides. If this is not the case, do not sit with or speak to the respondent. If they harass or approach you, tell the bailiff.

When it is time for your case, the judge will call your name. If the respondent has not been served, the judge will give you instructions about what you will need to do next. If the respondent has been served but is not present, the judge may choose to proceed with a default hearing. A default hearing means that you will just present your case, and then the judge will decide whether or not to issue the order without hearing from the other party. If the respondent is present, they can choose to ask for a continuance or proceed with the hearing.

A continuance is when either party asks for the judge to postpone the hearing to a later date. At the first hearing, the respondent has a one-time right to a continuance. As a petitioner, you do not have this same right, but you can still ask the judge for a continuance. If a continuance is granted, the TRO will be extended to your next hearing.

When your case is called, you and the respondent will go to the table and face the judge. As the petitioner, you will present your case first. You will explain to the judge what abuse has occurred. It is essential to be specific and include details about the abuse, such as events, times, and dates. It can be helpful to practice what you will tell the judge before your hearing or create an outline to refer to when presenting your case. You also will need to bring any evidence that you have to the hearing to submit it to the judge. Bring three copies of the evidence to the hearing. You can also bring witnesses to the hearing.

After you have presented your case, the judge will allow the respondent to give theirs. Do not interrupt them or any witnesses unless it is to make a legal objection. If they say anything that is not true, wait until they finish speaking and tell the judge. They may also bring evidence to challenge your case. The judge will also allow you to respond when they complete presenting their case.

After both parties present their case, the judge will choose whether to deny or grant the permanent restraining order. The judge can also decide to extend the TRO for a period of time. The judge determines to issue a restraining order by the preponderance of evidence standard (or that it is more than 50% likely that abuse occurred). A permanent restraining can last for up to five years, but judges in Orange County tend to issue them for three years. Unless expressly stated, restraining orders DO NOT restrain the protected party from doing anything.

Step #6 After the Hearing

If a restraining order has been issued, you can enforce it by reporting violations to law enforcement. If you are not sure whether or not a violation has occurred, you can err on the side of caution and report the violation. If you and the restrained party have children, the order may include provisions about child custody, exchanges, or supervised visitation.

Similar to the TRO, you must serve the respondent with the permanent restraining order. If the respondent is at the hearing, they will be served then. If they are not, you must serve them. Even if they have not been served and contact you after a judge issues a permanent order, you can still report the violation. Violating a domestic violence restraining order may lead to the restrained party being arrested and going to jail or criminal charges. It is a misdemeanor to violate a domestic violence restraining order.

The Role of an Advocate:

Filing a restraining order can be a very daunting and stressful process. As a survivor of relationship abuse, you can choose to work with a confidential advocate for support. Because of protections in California law, communications with a domestic violence advocate are confidential and privileged. This protection means they will not disclose anything that you share with anyone else. They can also help you consider options beyond a restraining order if this is not a process you wish to engage in and help you create a safety plan.

Advocates can help you prepare the paperwork for filing a restraining order and explain options available to you. Additionally, advocates can also accompany you to the permanent restraining order hearing. In Orange County, an advocate can sit with you at the table in front of the judge. Although advocates cannot say anything during the hearing, they can meet with you beforehand to explore ways to manage anxiety and ground yourself during the hearing. Members of the UCI community can reach out to the CARE Office if they wish to contact an advocate or connect with an advocate at a community organization if they choose.

Resources in Orange County

Advocacy:

· Human Options 24/7 Hotline 877–854–3594 https://humanoptions.org/

· Interval House 24/7 Hotline 714–891–8121 https://www.intervalhouse.org/

· Laura’s House 24/7 Hotline 866–498–1511 https://www.laurashouse.org/

· WTLC 24/7 Helpline 877–531–5522 https://wtlc.org/

Legal Advice/Free Lawyer Support:

· Public Law Center (714) 541–1010 https://www.publiclawcenter.org/

· Community Legal Aid SoCal (714) 571–5200 https://www.communitylegalsocal.org/

· Bette & Wylie Aitken Family Protection Clinic at Chapman University (714) 628–2636 | Email: seiden@chapman.edu

· UCI Law School Domestic Violence Clinic 949–823–7916