Restraining Orders (Part 3 of 4)

Dwelling Exclusion: An order excluding a party from "the family dwelling, the dwelling of the other party, the common dwelling of both parties, or the dwelling of the person who has care, custody, and control of a child to be protected from domestic violence" for whatever period and on whatever conditions the court determines, "regardless of which party holds legal or equitable title or is the lessee of the dwelling."

[Ca Fam §§ 6218(b), 6321(a), 6340(a)]
"Effectuating" Order: An order enjoining a party from any other specified behavior that the court deems necessary "to effectuate" § 6320 (assaultive conduct/harassment) or § 6321 (dwelling exclusion) orders. [Ca Fam §§ 6218(c), 6322, 6340(a)]

Firearms Restraining Order: A broad restraining order concerning the possession and acquisition of firearms automatically takes effect by operation of law when the court issues a Ca Fam § 6218 domestic violence protective order: A person subject to a Ca Fam § 6218 protective order is prohibited from owning, possessing, purchasing, receiving, or attempting to own, possess, purchase or receive, any firearms for so long as the protective order remains in effect.

Wiretap Order: A judge issuing a domestic violence restraining order may, upon the victim's request, also include a provision permitting the victim to record any prohibited communication made to him or her by the perpetrator. Absent such an order, the surreptitious recording, although made to document evidence of a crime, could run afoul of state and federal wiretap and invasion of privacy laws. [Ca Penal § 633.6(a)]

Restitution Orders: In domestic violence situations, after notice and hearing, the court may issue the following compensatory monetary orders--but not including "damages for pain and suffering" (Ca Fam § 6342(a),(b)):

Payment Of Victim's Damages: The Court may make an order requiring the respondent perpetrator to pay restitution to the applicant party for loss of earnings and out-of-pocket expenses--including, but not limited to, medical care and temporary housing expenses--incurred as a direct result of the abuse inflicted by the respondent or any actual physical injuries sustained from the abuse. [Ca Fam § 6342(a)(1)]

Damages To The State: The Court may make an order requiring the respondent perpetrator to pay restitution to any public or private agency for its reasonable cost of providing protective services to the other party as a direct result of the abuse inflicted by the respondent or any actual injuries sustained there from. [Ca Fam § 6342(a)(3)]

Payment Of Damages Caused By Unwarranged Application: If the court finds at a noticed hearing that the ex parte protective or domestic violence prevention order issued on "insufficient" supporting facts, an order requiring the party who obtained the order to pay restitution for out-of-pocket expenses incurred by the other party (respondent) as a result thereof. [Ca Fam § 6342(a)(2)]

Batterer's Program: Also, in domestic violence situations, and after a noticed hearing, the court may order the restrained person to participate in a batterer's program approved by the probation department, which may include lectures, classes, group discussions and counseling directed at stopping domestic violence (see Ca Penal § 1203.097(c)--batterer's program standards). [Ca Fam § 6343(a)]

Additional Emergency Protective Orders: Protective orders may be obtained ex parte on an emergency basis (so-called "emergency protective orders") in cases of imminently threatened domestic violence, child abuse and/or child abduction, stalking, or elder or dependent adult abuse. [Ca Fam § 6240 et seq.; Ca Penal § 646.91; see Ca Fam § 6241. These include

Harassment/Stalking Orders: The Court may issue a harassment protective order (as described in Ca Civ Pro § 527.6) or a workplace violence protective order (as described in Ca Civ Pro § 527.8) as necessary to prevent the occurrence or reoccurrence of "stalking" (defined to mean willfully, maliciously and repeatedly following or harassing another and making a "credible threat" with intent to place that person in reasonable fear for his or her safety or the safety of his or her immediate family; see Ca Penal § 646.9) (Ca Fam § 6274; Ca Penal § 646.91)

Temporary Care Of Children: An order determining the temporary care and control of any minor child of the endangered person and the person against whom the order is sought (Ca Fam § 6252(b))

Procedure

Ex Parte Orders

The procedure to obtain domestic violence restraining orders involves at least 2 steps. First "ex parte" orders are obtained on very short notice. This would be the first order it is commonly referred to as a TRO. At the "ex parte" hearing temporary orders may be issued by the Court which last until the next "Order To Show Cause" hearing which must be held no more than 21 days from the issuance of the first order.

"Ex parte" orders are granted on one party's application and without "formal" notice to the other party or opportunity to be heard in opposition. For that reason, the class of orders obtainable ex parte is narrowly circumscribed (primarily limited to "protective orders" and "domestic violence prevention orders," and, necessarily, such orders are of very limited duration.

Since due process requires reasonable notice and an opportunity to be heard, ex parte orders are issued with caution and only under extraordinary circumstances. Specifically, no order governed by Ca Fam § 240 et seq. may be granted on an ex parte basis unless it appears from facts shown in the application for the order (or by attached affidavit) that "great or irreparable injury would result to the applicant before the matter can be heard on notice." [Ca Fam § 241 (emphasis added); see also Ca Rules of Court Rule 379(g) (requiring "affirmative factual showing" of "irreparable harm, immediate danger, or any other statutory basis for granting ex parte relief")]

Ex Parte Hearing Notice Requirements: Although ex parte orders issue without a hearing on formal noticed motion, the California Rules of Court (and all local court rules or policies) require some form of advance notice of the intent to present an ex parte application (Ca Rules of Court Rule 379(a),(b),(e)).

****Again my experience will tell you that if the Police or DCFS are involved, then they grant these liberally and many times without notice as the person is in fear. So be forewarned. This may even include an order where you are not allowed to return to your home. It may even be your home with a girlfriend living within your home. The key is to act fast to seek legal assistance.

Under Rule 379, absent a showing of exceptional circumstances, the applicant must notify all parties no later than 10:00 a.m. the court day before the ex parte appearance. [Ca Rules of Court Rule 379(b)] However, not all family courts follow Ca Rules of Court Rule 379 and, in those courts, the minimum notice period may be different.

Issuance By The Court

The application, TRO (or Temporary Orders) and notice of hearing/OSC forms (along with the applicable filing fee) must be presented to the court where the underlying action is pending (or, if no pending proceeding, to the superior court of the county of proper venue per Ca Civ Pro § 395(a)).

The court must act on the ex parte application--either issuing or denying the requested order--on the same day the application is submitted. [Ca Fam §§ 246, 6326]

Service Of The Order

The ex parte order takes effect only upon proper service on the party to whom the order is directed.

The time-frame for service depends on whether the temporary restraining order(s) issued with or without notice:

• If the order(s) issued without notice pending the hearing, the above documents must be served on the respondent at least five days before the hearing. [Ca Fam § 243(b)]

• If the order(s) issued with notice pending the hearing, the above documents must be served on the respondent "at least 15 days before the hearing." [Ca Fam § 243(c) (emphasis added)]

Proof of service in accordance with § 243 (above) must be made to the court's satisfaction before the hearing may proceed. If service has not properly been effected and the applicant is not ready to proceed on the hearing date, the court "shall dissolve" the orders. [Ca Fam § 243(d)]