What kinds of restraining orders can you obtain under the DVPA?
Using the DVPA Judicial Council forms, you can obtain various types of restraining orders. You can also obtain orders that are not restraining orders. For example, you can obtain custody and support orders. Again, you can use the DVPA Judicial Council forms to obtain these kinds of orders even if you have not filed for divorce and even if you are not married to the other person.
The following is a list of the orders you can obtain under the DVPA:
- Personal Conduct Order: A personal conduct order tells the other party not to do any of the following things to you: Harass, attack, strike, threaten, assault (sexually or otherwise), hit, follow, stalk, molest, destroy personal property, disturb the peace, keep under surveillance, impersonate (on the Internet, electronically or otherwise), or block movements. In addition, a “personal conduct order” can tell the other person not to contact you, either directly or indirectly, in any way, including but not limited to, by telephone, mail, email or other electronic means. A “personal conduct order” can also tell the other person not to take any action to get your address. However, peaceful written contact through a lawyer or process server for service of court papers is allowed. Also, brief and peaceful contact for court-ordered visitation with the children will typically be allowed.
- Stay-away Order: A “stay-away order” tells the other person to stay a certain number of yards (typically 100 yards) away from you. It can also tell the other person to stay away from your home, workplace, vehicle, school, and other places, including your children’s school. Brief and peaceful contact as required for court-ordered visitation with the children will typically be allowed.
- Move-out Order: A “move-out” order tells the other person to immediately move out of the residence (i.e., family home or the apartment where the family has been living), taking only their clothing and personal effects needed until the next court hearing, and to not return.
- No Guns or Other Firearms or Ammunition Order: The court can tell the other person that they are not permitted to own, possess, have, buy or try to buy, receive or try to receive, or in any other way get guns, other firearms, or ammunition. If the other person already owns guns, the court can order that person to sell or store the guns with a licensed gun dealer or turn the guns into a law enforcement agency within 24 hours.
- Record Unlawful Communications: In California, it is a crime to record a confidential communication without the consent of all parties to the conversation. A confidential communication is one where any party to the communication reasonably expects the conversation to be confined to the parties participating in the conversation. This means it is a crime to secretly make a recording of a conversation you have with your spouse, whether that conversation is over the telephone or in person. However, you can obtain a restraining order that will permit you to legally record conversations between you and the other party if those conversations violate a judge’s order. For example, assume a judge issued a temporary restraining order that prohibits your spouse from threatening you. If your spouse threatens you, over the phone or in person, then, with this type of order, you can legally record that conversation.
- Care of Animals Order: The court can issue an order that gives you sole possession and control over animals, such as the family pets.
- Child Custody and Visitation Orders: The court can make child custody and visitation orders, even if the parents were never married. The court can also modify an existing child custody order.
- Child Support Orders: The court can make a child support order, even if the parents were never married. The court can also modify an existing child support order.
- Property Control Orders: The court can issue “property control orders” which give you temporary use, possession, and control over various types of property. Perhaps you are concerned your spouse will attempt to take your car away from you. You can use this type of order to be awarded control over particular items of property until some final disposition of the property can be determined by the court.
- Debt Payment Orders: The court can order the other party to make monthly payments on various debts until the final disposition of those debts can be determined by the court. For example, you may want the court to order the other party to pay the mortgage payment, car payments, and/or credit card payments.
- Property Restraint Orders: If you are married to the other party or have a registered domestic partnership, you can ask the court to issue an order that prohibits that person from selling, hiding, destroying, getting rid of, or borrowing against property or possessions, except in the usual course of business or for necessities of life.
- Spousal Support Orders: If you are married to the other person or have a domestic partnership with them, you can ask the court to issue a spousal support order.
- Rights to Mobile Device and Wireless Phone Account: The court can issue an order that gives you temporary use, possession, and control of mobile devices and wireless phone accounts. You can ask the court to order the other party to pay the monthly wireless phone account bill. You can even ask the court to issue an order that directs the wireless service provider to transfer the account from the other person to you.
- Insurance Orders: The court can issue an order that prohibits the other person from cancelling, cashing out, borrowing against, or changing the beneficiary of any insurance coverage held for your benefit or the benefit of the minor children. This type of order will prohibit the other party from cancelling health insurance; life insurance; automobile insurance, and other types of insurance.
- Lawyers Fees and Costs Orders: The court can order the other party to pay all or part of your attorney’s fees and costs.
- Payments for Costs and Services Orders: The court can order the other party to pay for your lost earnings or for services caused directly by the other person. This could include the cost of repairing property the other party damaged. It could include medical bills or counseling bills you incurred due to abuse.
- Batterer Intervention Program Orders: The court can order the other person to go to a 52-week batterer intervention program and show proof of completion to the court.
Three types of domestic violence restraining orders (EPO; TRO; and RO):
Emergency Protective Orders
If you and/or your children have been the victim of domestic violence and you report the matter to the police, a police officer will come to your home and interview you and any witnesses. The officer will also likely interview the other person. If the police officer concludes that an immediate and present danger of domestic violence exits and that an emergency protective order is necessary to prevent the occurrence or recurrence of domestic violence, then an “Emergency Protective Order” or “EPO” can be issued immediately, day or night.
An EPO cannot grant all of the types of orders that are available under the DVPA, but an EPO can include a “Personal Conduct Order”, a “Stay-away Order”, a “Move-out Order”, a “Child Custody Order”, and a “No Guns or Other Firearms or Ammunition Order”. An EPO will typically expire in just 5 days. The EPO will state the exact date on which it will expire.
EPOs are short-term solutions. If you need a restraining order that is going to last longer than 5 days, then you need to complete a “Request for Domestic Violence Restraining Order” (DV-100) and file it with the court. Typically, you are going to file the DV-100 with the court before the EPOs expire so there will be no gap in the protective orders.
Temporary Restraining Orders and Restraining Orders
When you file the DV-100 with the court, the court will set a hearing date. The hearing may not be scheduled to occur for several weeks or more. If, after reading your DV-100, a judge believes one or more restraining orders need to be issued immediately for your protection or for the protection of children, then the court will issue “Temporary Restraining Orders” or “TROs”. TROs can be issued immediately by the court, in as little time as one day, without any hearing. TROs remain in effect from the time the judge reviews your DV-100 until the day of the hearing. At the hearing, after the court has heard both sides, the court can issue regular restraining orders (ROs) that can last up to five years.
If you have been the victim of domestic violence and you call the police, the police will conduct an investigation. A police report may be made. The District Attorney, after reviewing the police report, may decide to file criminal charges against the perpetrator of the violence. The criminal case may be pursued by the District Attorney even if you do not want the criminal case to go forward. Some counties have a zero tolerance policy when it comes to domestic violence.