Welcome to FreeDivorce.com.
Christina: This is Christina.
Ed: This is Ed. Today we are going to talk about how to draft the DV-130 “Restraining Order After Hearing” form and how to serve the form on the other party.
Ed: Christina, let’s assume I attended the hearing on my application for domestic violence restraining orders. The judge heard the case and made decisions about the restraining orders I requested. What’s next?
Christina: At the end of the hearing, the judge will announce his or her decisions about which orders are going to be granted and which orders are going to be denied. The judge’s decisions must be reduced to writing. The writing will be a Judicial Council form entitled, “Restraining Order After Hearing”, which is DV-130. In many counties, the judge’s clerk will prepare the DV-130 immediately after the hearing while you wait. In these counties, the judge’s clerk will prepare the DV-130 and then hand it to the judge to sign. The judge’s clerk may even file the DV-130 and give you and the other party filed-endorsed copies before you leave the courtroom.
In some counties, the judge’s clerk will prepare the DV-130, but not file the DV-130. Instead, the judge’s clerk will give the DV-130 to you or the other party and instruct you or the other party to file the original DV-130 with the court clerk before you leave the courthouse.
In some counties, the judge’s clerk will not prepare the DV-130.
Ed: What if I live in a county where the judge’s clerk does not prepare the DV-130?
Christina: In these counties, at the conclusion of the hearing, the judge will instruct one party or the other to prepare the DV-130. Usually, the party that won the hearing will be instructed to prepare the DV-130. Somebody has to prepare the DV-130, get the judge to sign it, and then file the original with the court clerk. Otherwise, there won’t be a proper record of the decisions the judge made at the hearing.
Ed: What if I am the party that has to draft the DV-130 – how do I do it?
Christina: If you are the one that has to prepare the DV-130, go to our Court Forms Database where you will find a blank DV-130 that you can fill out. If the judge’s decision included orders about child custody you will also need DV-140 to attach to your DV-130. If the judge’s decision included orders about child support, you will also need FL-342. Note, this is an “FL” form and not a “DV” form. If the judge’s decision included orders for spousal support, you will also need FL-343. All of these forms that you may need to attach to your DV-130 can be found in our Court Forms Database.
Ed: When should I draft the DV-130?
Christina: You want to prepare the DV-130 on the same day as the hearing because any temporary restraining orders (TROs) previously issued by the court will expire that same day. You want the new orders that are contained in the DV-130 to be in place before the TROs expire. After you have prepared the DV-130, make three copies and take them back to the court and ask the court clerk what steps you need to take in order to get the judge to sign your DV-130. After the judge signs your DV-130, file the original with the court clerk. The court clerk will give you filed-endorsed copies. The court clerk will also forward a copy to law enforcement so it will be included in the CLETS Database. This will allow police everywhere in the State of California will be able to confirm the existence of the orders.
Ed: After the DV-130 has been signed by a judge, does a copy need to be served on the other party?
Christina: It depends. If the other party violates a protective order that is set forth in a DV-130, they can be arrested, charged with a crime, and fined. Before a law enforcement officer will arrest someone for violating a DV-130 order, the officer needs to confirm that the person was aware of the terms of the order. If the other party attended the hearing at which the judge made the orders, that person obviously heard the judge make the orders, and no other proof of service is needed. The DV-130, in item #25, will state that both parties were at the hearing and that no other proof of service is needed.
Ed: What if the other party did not attend the hearing?
Christina: If the other party did not attend the hearing, then the DV-130 will need to be served on that party. If the orders in the DV-130 are the same as the orders contained in the DV-109, which is the Notice of Court Hearing, and the DV-110, which is the Temporary Restraining Order, then you can serve the DV-130 on the other party by mail. If the orders set forth in the DV-130 are different than those set forth in the DV-110, or if a DV-110 was not issued by the court, then the DV-130 will need to be personally served on the other party. Again, you can look at item #25 on the DV-130 for information on which method of service, if any, needs to take place. If service of the DV-130 is by mail, use DV-250 “Proof of Service” by Mail. If the DV-130 is required to be personally served on the other party, use DV-200 “Proof of Personal Service”. After the DV-130 has been served on the other party, file the proof of service form with the court clerk.
Ed: Can I serve the DV-130 on the other party myself?
Christina: You cannot serve the DV-130 yourself because you are a party to the action. You can use a professional process server or have a friend that is over 18 years old serve the DV-130. Another option is to have the sheriff or marshal personally serve the DV-130 for free.
Ed: If you need help at any stage of the domestic violence process, the Superior Court in your county will likely have a “Family Law Facilitator” at the courthouse as well as a self-help program to assist you in obtaining domestic violence restraining orders.
For a referral to a local domestic violence or legal assistance program, you can call the National Domestic Violence Hotline at 1-800-799-7233. It is free and private.