OVERVIEW OF HOW TO GET A RESTRAINING ORDER UNDER
THE DOMESTIC VIOLENCE PREVENTION ACT (DVPA)
Protected Person completes:
Ex-Parte Notice: If required, you must give the Restrained
Person 24 hours telephone or other notice of intent to seek temporary restraining
orders, telling him/her exactly when, where and what orders you are seeking.
Since the law permits the court to waive this notice, many clinics will
first attempt to obtain orders without notice. When required, the
notice requirement is very strict. Courts are more likely to require
notice for a residence exclusion order.
Protected Person takes completed documents to courtroom clerk
for ex-parte request for TRO, and orders may issue with no notice or after
24-hour telephone or other notice.
Judicial officer issues TRO, with or without modifications,
requires notice or rejects the application for TRO. The court may
set the OSC for hearing without issuing any TRO.
Protected Person files original OSC/TRO at filing window,
no fee required
Clerk assigns OSC hearing date in approximately 21 days.
Protected Person requests and receives 5 certified copies
If there are children, and contested custody, Protected Person
must attend Conciliation Court (mandatory mediation) before hearing.
Some courts require an appointment before OSC hearing, others require attendance
on the day of OSC hearing or first available date.
Protected Person causes someone else to deliver personal
service of OSC/TRO.
You or any other person protected in the order, cannot serve
the documents. However, any person over 18 who is not protected in the
order may personally serve the documents, i.e. hand them to the restrained
party. If you have very low income, you may apply for a fee waiver for
service by Sheriff ($28). (See Fee
If you have a friend or relative who is willing to serve
papers for you who is known to the Defendant, it may be easier to get the
Defendant served that way because he or she may hide from the sheriff whereas
they perhaps will not be suspicious of someone they know approaching them.
If you have someone other than the sheriff serve the application, supporting
papers, and TRO, that person will have to fill out a Proof
of Personal Service form and give it to you for filing with the court.
Make sure that the person who serves the Defendant fills out the form correctly,
checking off box 1 showing that a temporary restraining order was among
the documents served, and listing which other papers were served in paragraph
4 of the form.
This will include at least
and if you have a child with the Defendant,
a Temporary Restraining Order and Order to Show Cause,
an Application and Declaration for Order,
a blank Responsive Declaration (form DV-120)
a Child Custody, Visitation and Support Attachment (DV-100A),
a Declaration Under Uniform Child Custody Jurisdiction Act
a Child Custody and Visitation Order Attachment (form 1296.31A)
and completed and blank Income and Expense Declarations or
Simplified Financial Statements (only if you are seeking child support
at the hearing)
Make sure the person who serves the documents shows the exact
address where the papers were handed to the Defendant, as well as the correct
date and time of day that the service took place, and then signs it under
penalty of perjury showing the date that it was signed. If
the form is not filled out correctly, the court may have to continue your
hearing to another day and require you to have the Defendant served with
the papers all over again. Make sure you bring the completed Proof
of Service to court with you on or before the day of your hearing.
After the court grants you a Temporary Restraining Order
which will last until the court date of your hearing, deliver it to the
police or sheriff's station that protects the home in which you are now
living. If you are able to get the Defendant served with the TRO, provide
a copy of the completed proof of service to your police agency, either
at the time you register your TRO with them or as soon as the Defendant
is served if that happens later. Do not let the police agency take your
original proof of service (the one your process server signed). You will
need to file that original in court on the day of the hearing or before.
THE COURT HEARING:
If you are not able serve the Defendant before the OSC hearing,
go to court on date of hearing and request a continuance with orders remaining
in full force and effect. You will complete an Application
for Reissuance of OSC/TRO (1296.15)
UNCONTESTED: If the Defendant does not come to the hearing,
the court will generally issue a Restraining Order After Hearing effective
for up to 3 years based on your declaration. You will obtain as many certified
copies of the order as you need (one for yourself, one to be served on
the Defendant, and one for each police department that may be called upon
to protect you).
You will cause the Order After Hearing to be personally served
on the restrained party in the same manner as your application and the
TRO were served before the hearing. There is no time limit for having this
done, but the sooner the better. This is because the prosecutor will not
be able to prove a criminal case against the Defendant for violating the
restraining order in the future unless there is evidence that the Defendant
knew the terms of the order and wilfully violated it. The way to prove
that a Defendant who did not come to court knows what the order says is
to serve him or her and file a Proof
of Service. (The check-off box in Item 1 must be checked showing a
restraining order contained in an Order After Hearing was served. The order
After Hearing and all other attachments such as Child Custody Orders should
also be listed in item 4.) Once again, you or any other person protected
under the order cannot serve this paper. If you have an ordinary citizen
serve the order, he or she must fill out the Proof of Service correctly
and give it to you to file with the clerk of the court that gave you your
restraining orders. If you hire the sheriff to serve the order, they will
take care of filing the Proof of Service for you.
CONTESTED: If restrained party appears at OSC Hearing and
no settlement is reached, there will be an OSC hearing, similar to a trial.
It is conducted differently in each court. Some are based only on
the declarations. In other courts, judicial officers require each
party, and 3rd party witnesses (if any), to testify. If Protected
Person prevails at hearing, the court issues a Restraining Order after
Hearing that may be effective for up to 3 years. Protected Person obtains
5 certified copies, and takes one to the police department. No further
service is required.
EXTENDING THE RESTRAINING ORDER BEYOND ITS EXPIRATION DATE:
If there is a reason to have the restraining order continue in effect beyond
its expiration date, the Protected Person should return to court before
it expires and apply to have it extended. These orders may be renewed,
upon the request of a party, either for three years or permanently, without
a showing of any further abuse since the issuance of the original order.
(Fam.Code, § 6345.)
NOTE: A restraining order
is only as effective as the Defendant is willing to obey it and the police
are able to respond to violations. Restraining orders don’t stop bullets,
seriously disturbed persons, or people who are unwilling to obey the law
regardless of consequences. If Protected Person is truly in danger,
she should consider entering a shelter.
VIOLATION OF RESTRAINING ORDER: Violating a restraining order
is a crime. The Protected Person must call the police to enforce
the restraining order, and s/he should make a police report. Be aware
that the police will take certain violations of the order more seriously
than others. For example, the Restrained Person returning to a residence
and stalking the Protected Person will be taken more seriously than the
Restrained Person bringing the child back an hour late from visitation.
Who Can Use
the Domestic Violence Prevention Act?
Qualifying Conditions for use
Recent incident of violence
No other family law action pending (but read the explanation)
Domestic Violence is defined as abuse perpetrated against
any of the following persons (Family
Code Section 6211):
A spouse or former spouse
A person with whom the party is having or has had
a dating or engagement relationship
A parent with a child in common
Regardless of whether they are a member of your household,
any other adult person related to you by blood or marriage within the second
degree -- brother, sister, father, mother, grandparent; or your child or
grandchild (your uncles, aunts, cousins, and neices and nephews are not
covered unless they are members of your household).
A cohabitant or former cohabitant
This definition includes same-sex relationships and may include
previous or current roommates. Roommates who have a strictly landlord
tenant relationship or who have come together by the happenstance of a
common sublet are NOT covered under the DVPA. On the other hand, roommates
who live together "as a group with a common goal" and operate as a social
unit are covered. This could include roommates who share their income
and living expenses. (If that concept is confusing, the difference is basically
whether or not you chose your own housemate. If you chose each other, you
probably have a "common economic goal." If your landlord chose your housemate,
as in a rooming house, you don't have a "common economic goal.") If the
Protected Person is not eligible to file under the DVPA in a roommate,
s/he may be eligible to obtain a civil
harassment restraining order. (You can download the Judicial Council
booklet with information about how to file a suit to prohibit Civil Harassment
NOTE: A minor, over 12 years of age and under 18 years
of age, may appear in court without a guardian ad litem (adult who is appointed
to represent the interests of the minor), for the purpose of obtaining
a restraining order against a party with whom s/he is having or has had
a dating or engagement relationship. Children under 12 must have
a guardian ad litem appointed.
Abuse is defined as "intentionally or recklessly to cause
or attempt to cause bodily injury, or sexual apprehension of imminent serious
bodily injury to that person or to another." This means, among other
things, hitting, kicking, pushing, breaking furniture, threatening pets,
sexually assaulting, punching, or threatening to do any of the above. The
violence or threat of violence must be recent, usually in the last month.
NO OTHER FAMILY
LAW ACTION PENDING
There is no legal requirement that a party who is already
involved in a Family Law case (divorce/nullity/legal separation or paternity),
must file for restraining orders in that case. However, common sense, the
appropriate use of judicial resources, and the convenience of the parties
suggest that new cases between the same parties should not be commenced,
particularly in a different courthouse, if there is already a Family Law
matter between the parties that will serve the needs of the person seeking
restraining orders. This is true even if a final judgment has been entered
and particularly if there are still minor children of the parties.
If there are minor children, a Domestic Violence restraining order will
affect how custody and visitation of the children is handled, even if orders
have already been made in the Family Law case. Therefore, it is most appropriate
to file for a restraining order under the Family Law case so that the same
court may decide how custody orders should be rearranged if a restraining
order is put into effect. If you do file for protective orders in an existing
(or in a newly filed) Family Law case, you must use the DVPA application
forms, but they will simply be assigned the existing case number by the
clerk. If the family law action is final, and there are no minor children,
the person seeking protective orders may file a separate proceeding under
the DVPA in any appropriate courthouse.
You File Your Application for Restraining Orders?
Victims of domestic violence may file their DVPA actions
in the courthouse in the District in which they live or in the Central
District (111 N. Hill Street, Los Angeles), at their discretion.
The court clerk or the courthouse clinic can tell if s/he lives in the
If the Protected Person files in a branch court in an
area to which s/he has recently moved, the Restrained Person will know
the general area where s/he is living. If it is filed in the Central
District, the Protected Person may be inconvenienced by having to go to
downtown Los Angeles for the hearing(s), but the Restrained Person will
not have a hint of where s/he is living.
What If You
Can’t Get to Court?
See Legal Steps
You Can Take To Promote your Safety: Emergency Protective Orders
You Must File
It is necessary for you to download and install the
free Adobe Acrobat viewer to access the Judicial Council forms from their
website. Click the image below to do so.
Order to Show Cause and Temporary Restraining Order*
Application and Declaration for Order*
Blank Responsive Declaration
Proof of Service*
Restraining Order After Hearing*
Declaration Re Notice or Waiver of Notice* (available at the courthouse)
H245/H246 Law Enforcement Information
Form that must be filed if you wish your case heard in
a local branch court:
Rule 2.0(d) -- FAMILY AND PROBATE CASE COVER SHEET-- CERTIFICATE OF
GROUNDS FOR ASSIGNMENT TO DISTRICT
Forms that must be filed if you and the Restrained Person
Child Custody and Visitation Order Attachment*
Child Custody, Visitation and Support Attachment*
Declaration Under Uniform Child Custody Jurisdiction Act*
Supervised Visitation Order* (optional for use only if Restrained Person's
contact with the children should be monitored by another adult)
Forms that must be filed if you are seeking child support
from the Restrained Person:
Income and Expense Declaration Face Sheet
Financial Statement (Simplified)* (This may be used in place of
the more detailed 1285.50 series)
And to be filed after the court hearing once a child support
order has been made:
Child Support Information and Order Attachment *
Wage Assignment Order* --
for filling out this form may be found at the link or at the courthouse)
Form that must be filed if you were unable to serve
the Restrained Person with the application before the hearing and to keep
your temporary orders in effect:
Application and Order for Reissuance of OSC/TRO
For more detailed instructions about filling out the Judicial
Council forms and proceeding with your application for a Domestic Violence
restraining order, you may wish to go to your local courthouse and obtain
the publication "Domestic Violence Restaining Orders Instruction Booklet"
prepared by the state Judicial Council. You can download the booklet at
link, but it will take about 10 minutes with a 28.8 modem.
NOTE:THESE MATERIALS NOT INTENDED TO PROVIDE A COMPLETE
EXPLANATION OF HOW TO OBTAIN A RESTRAINING ORDER, BUT OFFER AN OVERVIEW
TO HELP YOU PREPARE TO OBTAIN ORDERS THROUGH LAWYERS OR LEGAL PROFESSIONALS.
See Court Based Restraining Order
Clinics: locations, hours.
Supporting Your Application for Restraining Orders
Your statement is extremely important. The
judge reads the statement to determine if the facts of the case sufficiently
support ALL the orders you are requesting. Many courts do not take any
other evidence and base their decision on the statement alone. Therefore,
it is necessary to provide adequate information and detail to support each
order requested. On the other hand, your case will be only one of a number
of cases handled by the judge on the day of your hearing. Bear in mind
that s/he does not have time to read pages and pages about the history
of your relationship. Adding numerous irrelevant details makes your story
difficult to follow and takes away from the forcefulness of your presentation.
This is another reason why you should consider seeking assistance from
an attorney or from the restraining order clinic at your courthouse. They
will help you put together a statement that tells enough without telling
more than is needed.
Things to Think About
The statement (also called a declaration because
it is a statement under oath) begins with the most recent incident of violence.
If possible, include two to three specific incidents of violence in the
declaration. Include specific details in describing the recent incidents
of abuse including:
Approximate date and time of each incident
Details of how the you were abused, including the parts of
your body that were struck and the manner in which the defendant struck
you. For example, “Defendant punched me with a closed fist in my
right eye.” “Defendant swung a baseball bat at me and hit me with
it on my left thigh.”
Specific threats or verbal abuse by the defendant (example:
“Defendant threatened to ‘bash in’ my head if I attempted to leave the
Law enforcement intervention
Weapons involved in the conflict/incident
Location of the children during the incident and the effect
of the violence on them.
Some specifics about the Defendant’s drug or alcohol abuse
Avoid general statements such as “he assaulted me;” “he battered
me” or “he is violent.” (These are not statements of facts.
They are conclusions. "He kicked me in the stomach" is a
statement of a fact. Your job is to state facts. The judge's job is to
draw the conclusions from the facts you state.)
HISTORY OF THE RELATIONSHIP:
You must provide information about the history of the relationship, including
but not limited to, when the parties met, the nature of their relationship
(e.g. marriage, dating, roommates), the defendant’s general pattern of
behavior during the relationship, how frequently the violence occurred
and what types of violence. (Remember, however, that the judge's time is
limited and s/he does not need pages of details about your and the Restrained
Person's past life. As stated above, an attorney or personnel at the restraining
order clinic at your local courthouse can help you prepare a statement
that is short but effective.)
DOCUMENTATION: If available,
the you should bring to the clinic any police reports, doctors reports,
pictures, or other evidence related to the violence. Copies of these documents
may be attached to the declaration. If you can make duplicates of
the pictures of injuries or bruises, attach the original or duplicate.
Whether or not the documents are attached to your declaration, you should
bring the originals to the court hearing.
for the OSC (21Day) Hearing
Support person: Victims of domestic violence
may have a support person who may stand by them in court. The support
person cannot talk on behalf of the party, but may only provide moral support.
Dress for Success: You should dress as if you were
going on a job interview or to church.
You should make a list of the orders that you want and bring
it with you; you should bring pad and paper to take notes.
If you haven’t come to an agreement for custody and visitation
in conciliation court, you should think about the custody and visitation
plan you want for your children. Don’t expect the judge to know what
you want. You must ask for what you want. Otherwise, the restrained
party may get what s/he wants.
You should gather your original evidence.
Pictures: Many shelters and courthouse clinics have
polaroid cameras to take pictures of injuries and bruises. You should
not count on pictures taken by the Police. Many Police Departments
will not release pictures without a subpoena. Even if they will, you probably
will not be able to get them in time for the hearing.
You may want to obtain copies of police reports: If your
area is served by the Los Angeles Police Department, obtaining copies of
police reports (in which she is victim) takes about 2-3 weeks. The
request must be made by mail to: Records and Information (R&I),
Parker Center, PO Box 30158, Los Angeles, CA 90030. Include a check
or money order for $13, the DR#, name of victim, date of occurrence.
You can call R&I at 213-485-2603 for help getting DR#. If you
don’t have 2-3 weeks, LAPD may work with you to expedite the process.
You will have to show them a document with the court date. You should
call R&I to arrange the process (213-485-2603). Some local police
departments will provide copies of recent reports, and you will have
to consult with the local department.
You may want to obtain copies of the defendant's criminal
record: The Criminal Courts Building is located at 210 W. Temple,
Los Angeles 90012. You will need the defendant's true name and date
of birth. The records go back 10 years. The request may be
made in person or by mail. You will obtain case numbers from criminal
cases against him. If the case was heard downtown, the clerk will
help you find the disposition. If the cases were filed in branch
courts, you will have to go directly to the branch court to find the disposition.
Many branch courts have criminal records division, and you may check with
the local court first if it is more convenient.
You may want to obtain copies of medical reports and bills
Kids’ drawings: Sometimes these may be very revealing.
Third party witnesses: Some courts will accept written statements
under penalty of perjury from 3rd party witnesses (letters will ordinarily
be rejected). Many courts require that the witnesses be in court even if
you have presented their declaration. Depending on the circumstances, you
may want: (1) witnesses who saw the Restrained Person hit or abuse
you; (2) witnesses who heard the Restrained Person abuse you; (3) witnesses
who saw you caring for your children in a loving manner; (4) witnesses
who saw that your home is clean and safe; (5) witnesses who have observed
the Restrained Person abuse alcohol or drugs.
You may want to watch hearings in other people's cases before
the day of your court hearing: Going to court can be very scary.
If you have time, it helps if you go to the courtroom where your case will
be heard, and watch the proceedings. You will know what to expect
when your case comes up for a hearing.
Going to the
OSC (21 Day) Hearing
After you have obtained your TRO, you must still return
to the Court for the OSC hearing or your orders will expire. Even
if you have not been able to serve the restrained party, you must appear
at the hearing and request the court to reset the hearing to allow you
additional time to have the restrained party served and to keep your temporary
restraining orders in effect. If you are going to be late or are
unable to attend the hearing, you must call the clerk in the courtroom
and explain the situation. If the OSC hearing is continued, you will have
to complete and application and order for reissuance of OSC/TRO.
Check in: Get to court early. Different
courts have different check in procedures. Ask the clerk who will
tell you what to do.
File the completed proof of service: Whoever serves
the restrained party must fill out the Proof of Personal Service, including
which documents were served, the date and time restrained party was served
and the address where restrained party was served. The person who
serves the restrained party must write his or her name on the Proof of
Service, and sign and date it. You must bring the completed proof
of service to court on the date of her hearing. If the restrained
party is not present at the hearing, the court will ask for the proof of
service. If you don’t have the completely and properly filled out
proof of service, the hearing cannot go forward.
Do you need a translator? Some courts provide
certified Spanish translators at no cost (Central District). Check
with the court in advance. Evidence Code Section 755 requires that
non-English speaking victims of domestic violence have a court certified
interpreter, unless there is good cause otherwise. Court certified
interpreters are very costly, and the court will not waive the fee unless
you have very low income. If you are not able to understand English well,
you should bring an interpreter (or check with the court in advance).
If the interpreter is not certified, inform the clerk. Each
court is different. Check with the court well in advance, and be
prepared with your own interpreter if necessary.
Do you want to stipulate to the Commissioner? In
most Family Law courts the judicial officer is a commissioner. The
commissioner is not an appointed or elected judge, but is hired by the
superior court as a permanent "temporary" judge. The commissioner does
not have the power to hear the case unless both parties agree that the
commissioner can decide their matter by signing a form called a Stipulation.
Once both parties sign the Stipulation to the Commissioner, they must go
before that commissioner for all future matters pertaining to the case.
If either party refuses to sign the Stipulation, the matter will be sent
to a judge. You should sign the Stipulation unless you have been
advised not to by a very reliable source. The commissioners of the
superior court have a great deal of experience hearing Family Law and Domestic
Violence matters. Other judges may or may not. In some branch courts you
may experience significant delays having your matter heard if it is transferred
out of a Family Law courtroom. This is not to force you to accept the commissioner.
It is just that other civil courts that do not hear Family Law matters
on a regular basis have their calendars already preset with non-Family
Law matters, and your case will have to be worked into their calendar once
it is transferred in.
Support person (Family Code 6363): You are entitled
to have a support person with you in court. The support person cannot
talk for you, but may lend moral support. The support person should
also listen carefully and take notes!
Do you have children from this relationship?
If yes, have you gone to Conciliation Court, mandatory free court mediation?
If the restrained party is present and there is a contested custody matter,
the parties will have to attend conciliation court. If you have not
done so, you should tell the clerk. If there are minor children involved
in the action and both parties are present in court but have not yet been
to Conciliation Court, the judge must order the parties to attend Conciliation
Court before hearing their case. Each court may have a different
Important Note: Do NOT
bring your children to court unless the court specifically tells you to.
The children will not be allowed in the courtroom, the waiting in the hallways
will not be pleasant for them, and they will distract you from handling
your case the way you want to. Most courthouses have absolutely no facilities
for child care.
Listen to the judge. Listen very carefully to
the judge, and to any person who speaks in the hearing. You may have
an opportunity to ask questions of a witness or the other side.
You will have had to listen carefully to what they have said.
Take notes when the judge makes orders: Try to take
notes of the order the judge makes.
What if you don’t understand what happened?
Ask the judge questions if you don’t understand something. Always
Submit an Order after hearing: Clinics often prepare
a Restraining Order after Hearing that you can hand to the clerk before
Ask for the Minute Order: If you don’t have a prepared
order after hearing, ask for the clerk’s minute order. The Minute
Order is basically a record of what occurred at the hearing. Sometimes
the Minute Order will simply refer to the court reporter’s transcript,
and then you will have to order it. Sometimes the clerk is busy and the
Protected Person will have to wait hours for the Minute Order. It
really helps if you take notes or your support person takes notes.
The hearing: If the defendant is present at the hearing,
you both may have the opportunity to tell your sides of the story.
In some courts, the judge makes his/her decision solely on the declarations.
In some instances, the judge simply asks the defendant if s/he will abide
by the requested orders. The judge may ask you if you have read the
“Application and Declaration” and whether you understand what you are requesting.
If judge determines there is sufficient support and basis for the orders
requested, s/he will issue a permanent order (Restraining Order After Hearing)
that may be effective for up to 3 years. Depending on the particular
case, the judge may change or decline to grant some of the orders requested.
Each court is different. Ask them at the Clinic what to expect.
Go to a hearing and watch! This is really helpful.
Order After Hearing: The Protected Person must obtain
5 certified copies of the Order After Hearing from the clerk.
Take one the local police department. Always keep one in your purse,
one in a secured place, and distribute the others as may be appropriate,
i.e. child care provider, school, place of employment, neighbors, etc.
Serve Restrained Party: If the restrained party is
present at the hearing, you are not required to serve him/her with a copy
of the Order After Hearing. If the restrained party is not present
at the hearing, you will have to cause him/her to be personally served
with the order. You or any other party protected under the order
There is a new law that permits a protected party to serve
by mail a restrained party who did not attend the hearing if advance notice
is given on the application that service of the order will be by mail to
an address specified. However, the law is new and untested as to whether
it will support a future prosecution of the Restrained Person in criminal
court, so your safest bet as a Protected Person is to always have the Restrained
Person served in person with the restraining order if s/he was not present
at the hearing.
WHAT TO DO IF YOU ARE SERVED
WITH A RESTRAINING ORDER
You must comply with the Temporary Restraining Order or risk
jail and criminal prosecution. You should complete and file the Responsive
Declaration and mail a copy to the protected party within the time provided
by Order to Show Cause that was served upon you. For further assistance,
see Legal Referrals andHow
Do I Find an Attorney.You may also want to go to your local
courthouse and obtain the publication "Domestic Violence Restaining Orders
Instruction Booklet" prepared by the state Judicial Council. You can download
the booklet at
link, but it will take about 10 minutes with a 28.8 modem.
FEAR OF DEPORTATION
AND YOUR RIGHT TO SELF-PETITION
You do not have to tell anyone in the family court your
immigration status. You have the right to request a restraining order
for your protection without being afraid of deportation. If you are
married to a US citizen or a permanent resident, you may have the right
to self-petition for permanent residence without the participation or knowledge
of your husband.
You should seek assistance of an immigration attorney.
If you are low-income, you may contact Legal Aid Foundation of Los Angeles
(213) 640-3904 or (fax) (213) 640-3911. For general information,
you may contact the National Immigration Law Center at (213) 639-3900.