“Domestic violence” is abuse perpetrated against any of the following persons: A spouse or former spouse, a cohabitant or former cohabitant, a person with whom the respondent is having or has had a dating or engagement relationship, a person with whom the respondent has had a child, and any other person related by consanguinity or affinity within the second degree. (Fam. Code, §6211). “Cohabitant” means a person who resides regularly in the household. The term does not include persons who simply sublet different rooms in a common home, if they otherwise are not part of the same household or do not have some close interpersonal relationship, i.e., a romantic relationship. Alternatively, the term “cohabitant” is not restricted to romantic partners; it can include parents, grandparents, children, and other relatives. (Fam. Code, §6211).
A restraining order is a court order that protects a person from abuse. To “abuse” someone means to intentionally or recklessly cause or attempt to cause bodily injury, or sexual assault, or place another person in reasonable apprehension of imminent serious bodily injury to himself, herself, or another. Abuse can be spoken, written, or physical—it need not be actual infliction of physical injury. (Fam. Code, §6203). Abuse can be accomplished by destroying personal property, by telephoning someone, or even through the mail. (Fam. Code, §6203(d)).
A DVRO is a court order that can restrict the restrained person’s personal conduct, order the restrained person to stay away from you, your work/home, and/or your children, children’s school, other relatives, or those who live with you, order the restrained person to be removed from the residence, order child custody, visitation and support, or any other miscellaneous orders. (Fam. Code, §6300).
Requirements to File a DVRO
You can file for a DVRO if:
- A person has abused you recently (within the last 30 days), and
- You have a close relationship with that person (i.e. married or registered domestic partners, divorced, separated, dating or used to date, live together or used to live together), or you are related (parent, child, brother, sister, grandmother, grandfather, in-law). Simply being roommates with the restrained person is not enough. (O’Kane v. Irvine (1996) 47 Cal.App.4th 207.)
Obtaining the DVRO
If a police officer answers a domestic violence call, you should explain to the officer why you are afraid, in detail. A police officer who answers a domestic violence call may ask a judge for an Emergency Protective Order (EPO). This can be done at any time, day or night. The judge will decide whether or not to make the order by the next business day—sometimes the judge may decide sooner.
The EPO starts immediately and can last for up to one week. Through the EPO, the judge can order the abusive person to leave the home and stay away from you and your children.
During this week, you should take the necessary steps to file for a DVRO—Temporary Restraining Order (TRO) by completing and filing the required forms with the court. A TRO can be issued upon showing the court reasonable proof of a past act or acts of abuse. (Fam. Code, §6200). The required forms include a “Temporary Restraining Order” (Form DV-110) “Request for Domestic Violence Restraining Order” (Form DV-100), and “Notice of Court Hearing” (Form DV-109).
Submit these completed forms to the court clerk to give to the judge. The judge will then review the forms and decide whether or not to grant the TRO. The judge must decide this by the next business day. Ask the court clerk when you should return to learn whether the judge signed the “Temporary Restraining Order” (Form DV-110) and the “Notice of Court Hearing” (Form DV-109).
How Long does the DVRO Last?
If the judge agrees that protection is necessary, a TRO will be issued. The TRO will last until your next court date. At that time, the judge will decide whether to dismiss the TRO, or to turn it into a permanent restraining order. If you do not go to court on the date that the clerk has assigned to you, your order will automatically be dismissed. Orders can last up to five years, and can be renewed for an additional five years.
Notifying the Restrained Person of the DVRO
The restrained person learns about the order when he or she is “served” with a copy of it. To serve the order, a person who is at least 18 (and who is not you or anyone else protected by the order) must give the restrained person a copy. Otherwise the Sheriff will attempt to serve the order for free.
Have the server fill out and sign a “Proof of Personal Service” (Form DV-200). Before the hearing, file your proof of service by making five copies of the completed form, and by bringing the original and the five copies to the court clerk. The clerk will keep the original and give you back the copies with a stamp on them. Bring a copy of this stamped form to your hearing to show the judge and the police that the restrained person received a copy of the order.
Terminating the DVRO
Only the judge can change or terminate the order. The parties themselves cannot agree to cancel the order. This means that if you have obtained a DVRO against an individual, you cannot agree to allow him or her to have contact with you while the order is still in place. The individual would still be in violation of the order.
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