Domestic Violence Restraining Orders

The alleged victim of domestic violence can file a request for a domestic violence restraining order against the respondent under the Domestic Violence Protection Act (DVPA). (See Family Code, § 6220 et seq.)

In these cases, the petitioner provides an affidavit in support of the request. If the allegations contained in the affidavit are sufficient, then the trial court will grant a temporary restraining order, and set the matter for an evidentiary hearing on the request for a final hearing to determine if the final restraining order should be granted.

During the hearing, the respondent is permitted to cross-examine the petitioner and the order must be supported by substantial evidence.

Attorney for Domestic Violence Restraining Orders in Ventura, CA

At Jay Leiderman Law, we can represent you during a petition for a restraining order hearing in a domestic violence case. We can also help you appeal an adverse ruling from an order granting a domestic violence restraining order. We work with clients in all ten Ventura County cities – Camarillo, Fillmore, Moorpark, Ojai, Oxnard, Port Hueneme, Santa Paula, Simi Valley, Thousand Oaks, and Ventura itself.

Call (805) 654-0200 for a free, confidential consultation.

Overview of Restraining Order Law in California

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Rules for Restraining Order Hearings in California

As a general rule, the trial court may not grant a restraining order under the DVPA unless the evidence establishes, “to the satisfaction of the court, reasonable proof of a past act or acts of abuse.” (§ 6300.)

Except for temporary restraining orders, which may be granted ex parte (§§ 241, 6300), the issuance of a restraining order under the DVPA requires notice and a hearing. (§§ 240, subd. (c), 241, 242, subd. (a).)

“That hearing provides the only forum the defendant in a DVPA proceeding will have to present his or her case. In Schraer v. Berkeley Property Owners’ Assn. (1989) 207 Cal.App.3d 719, 733, the court discusses the hearing provisions applicable to civil harassment injunctions under Civil Code § 527.6 which are similar.

DVPA hearings are subject to section 217, which states that “the court shall receive any live, competent testimony that is relevant and within the scope of the hearing,” unless the parties stipulate otherwise, or the court makes an express “finding of good cause to refuse to receive live testimony.” (§§ 217, subds. (a) & (b).)

The California Legislature enacted section 217 “to alleviate the harsh effects stemming from the common practice of family law courts seeking to expedite family law proceedings by requiring litigants to rely primarily on written declarations in lieu of introducing live testimony.” (In re Marriage of Binette (2018) 24 Cal.App.5th 1119, 1126.)

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Due Process Requirements for Restraining Orders

The right to due process set forth in the federal and state constitutions requires the government to provide reasonable notice and an opportunity to be heard before depriving a person of life, liberty, or property. (U.S. Const., 14th Amend., § 1; Cal. Const., art. I, §§ 7, subd. (a).

The due process requirement applies to restraining orders, including those issued under the DVPA. The party opposing the domestic violence restraining order has the due process right to testify, and question the moving party. In fact, due process requires oral testimony before issuing the restraining order.

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Possessing a Firearm after a Restraining Order

California law makes it a crime for a person who purchases or receives a firearm, or attempts to do so, or owns or possesses a firearm knowing that the person is prohibited from doing so by a temporary restraining order, an injunction, or a protective order.

When it comes to purchasing and receiving a firearm, the crime is an alternate felony-misdemeanor that is punishable by:

  • up to one year incarceration in county jail or in state prison for 16 months, two years, or three years;
  • a base fine of up to $1,000; or
  • both the incarceration and fine.

When it comes to owning or possessing a firearm, the crime is a misdemeanor that is punishable by incarceration in county jail for up to one year, a base fine of up to $1,000, or both the incarceration and fine.

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Appealing a Domestic Violence Restraining Order

The appellate court reviews the grant or denial of a restraining order under the DVPA for abuse of discretion.  “So long as the court exercised its discretion along legal lines, its decision will not be reversed on appeal if there is substantial evidence to support it.” (Marriage of Smith (1990) 225 Cal.App.3d 469, 480.)

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Renewing a Restraining Order

Under Family Code section 6345, subdivision (a), a trial court may renew a restraining order “upon the request of a party, either for five years or permanently, without a showing of any future abuse since the issuance of the original order, subject to termination or modification by further order of the court either on written stipulation filed with the court or on the motion of a party.”

In determining whether to renew a restraining order, the court employs an objective test and renews the protective order if it finds by a preponderance of the evidence the protected party entertains a reasonable apprehension of future abuse. (Ritchie v. Konrad (2004) 115 Cal.App.4th 1275, 1290.)

If the respondent appeals the trial court’s order, the appellate court reviews the ruling for an abuse of discretion. (Gonzalez v. Munoz (2007) 156 Cal.App.4th 413, 420).

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Additional Resources

California Courts Form Files for Domestic Violence – Here you can find a list of forms relevant to domestic violence. Included is a form for requesting a domestic violence restraining order. You can also find the files needed to get a temporary restraining order.