In California, victims of domestic violence can go to civil court and request a restraining order. A restraining order directs the alleged abuser not to harm or have any contact with the victim. Even though it's a civil order, violating the order can result in criminal penalties.
Under the Domestic Violence Prevention Act, a victim of domestic violence, stalking, or sexual assault may ask for a restraining order. Domestic violence in California is actual or threatened physical abuse committed by a current or former intimate partner, family member, or close relative, which includes:
Other types of no-contact orders include civil harassment, criminal protective, and workplace violence restraining orders.
A victim (called the petitioner) can request a domestic violence restraining order in family court to prohibit incidents of abuse committed by a current or former intimate partner or close relative (referred to as the respondent). The petitioner must identify specific acts of domestic violence and the required relationship in order for the court to grant the order. The request must be served on (delivered to) the respondent, who can then file a response, attend the hearing set on the matter, or do neither or both.
A request can be filed in the county where the respondent lives or where the domestic violence happened.
California law does not require petitioners of domestic violence restraining orders to pay court costs or filing fees. If it's determined that the respondent committed acts of domestic violence, the judge can require them to pay court costs and filing fees, as well as the petitioner's attorneys' fees.
If the petitioner fears immediate harm, the judge may order a temporary restraining order. Once the respondent receives and knows of the temporary restraining order, a violation can mean criminal charges. Typically a law enforcement office or process server (upon request) will deliver the papers to the respondent, after which the court will hold a full hearing.
The court will hold a hearing on the restraining order request unless the petitioner requests dismissal of the case. Although the respondent isn't required to respond, a respondent's failure to appear likely will result in the judge granting the request for a domestic violence restraining order. At the hearing, the petitioner must prove the allegations by a preponderance of the evidence ("more likely than not"). The respondent also will have an opportunity to give evidence and testimony as to why the judge should deny the request.
The type of order will determine the terms or conditions available and the duration of the order.
When law enforcement officers respond to a domestic violence call, they may call and ask a judge to issue an emergency protective order (EPO) right away. The officer must have reasonable grounds to believe the victim faces immediate danger of further domestic violence by the abuser. The EPO only lasts five business days or seven calendar days. During that time, the victim may file a petition for longer protection in a domestic violence restraining order (below).
The terms of the short-lived EPO can include ordering the offender not to have contact with the victim, removing the abuser from the home, awarding the victim temporary custody of shared children, and prohibiting the abuser from possessing firearms.
When filing the request for a restraining order, the petitioner may ask for an immediate, temporary order (TRO) if they need protection right away (before the hearing can be held). This TRO (like the EPO) can require the offender to leave the home and not have any contact with the victim. The TRO remains in effect until the court dismisses the case or holds a full hearing, which typically takes place within 20 to 25 days.
The full hearing provides the respondent an opportunity to contest the issuance of a more permanent restraining order, which may last up to five years.
The terms available for a final order after hearing (OAH) can include:
The petitioning party also has the option to request renewal of the OAH for another five years or permanently.
Even though a restraining order is a civil court order, a violation can result in criminal penalties. Respondents also need to take the temporary orders seriously, as they too carry the same criminal penalties for knowing violations.
Violating an EPO, TRO, or OAH constitutes a misdemeanor that carries a penalty of up to one year in jail and a $1,000 fine. If the victim suffers a physical injury, the abuser can face a 30-day minimum jail sentence. Repeat violations subject the offender to a felony charge. The abuser faces up to three years in prison and a $10,000 fine for a felony charge.
The court may hold an offender in contempt for violating a domestic violence restraining order, which can mean jail time, fines, and community service.
California law provides additional protections for victims in enforcement of domestic violence protective and restraining orders.
Arrest. Police officers must arrest an abuser, without a warrant, if they have probable cause to believe the offender violated the restraining order.
Bail and bonds. A person who violates a restraining order may have to post a bond of up to $15,000 for a misdemeanor and even more if the prosecutor charges the violation as a felony. Under certain circumstances, when a police officer believes the bond amount is not sufficient to protect the victim, they can request an even higher amount. If the offender violates any term or condition of the bond, they risk forfeiting the entire bond amount.
Firearms. Abusers who have a TPO or OAH issued against them cannot possess or buy a new gun. Offenders must relinquish their guns. Violators of the firearms restrictions face up to a year of incarceration and a $1,000 fine. They can also be found guilty of contempt. Federal bans may also apply.
(Cal. Fam. Code §§ 6203, 6211, 6222, 6250 to 6252, 6256, 6302, 6304, 6320, 6321, 6324, 6325, 6341 to 6346, 6389; Cal. Penal Code §§ 166, 273.6, 29825 (2020).)
If you received notice of a domestic violence restraining order issued against you, contact an attorney who works in family law or criminal defense. For criminal charges stemming from a violation, speak to a local criminal defense lawyer. An experienced attorney can review the circumstances of your case and discuss possible defenses with you.
If you're a victim seeking assistance in filing for a domestic violence restraining order, contact a lawyer who specializes in family law or a victim's advocate. You can also check out Nolo's Resources for Victims of Crime.
The California Judiciary provides free forms and instructions online for requesting and responding to domestic violence restraining orders.