OVERVIEW OF HOW TO GET A RESTRAINING ORDER UNDER THE DOMESTIC VIOLENCE PREVENTION ACT (DVPA)

• Overview of Procedures

 
• Who Can Use the DVPA/Qualifying Conditions?
• Specific Relationship
• Recent Incident of Violence
• No other family law action pending

 
• Where Do You File Your Application for Restraining Orders?

 
• What If You Can’t Get to Court?

 
• The Forms You Must File

 
• Your Statement Supporting your Application for Restraining Orders

 
• Important Things to Think about

 
• Preparing for the OSC (21-Day) Hearing

 
• Going to the OSC (21-Day) Hearing

 
• WHAT TO DO IF YOU ARE SERVED WITH A RESTRAINING ORDER

 
• FEAR OF DEPORTATION AND YOUR RIGHT TO SELF-PETITION

 

Overview of Procedures
 

• Protected Person arrives at Courthouse.  See Information about Applying for Restraining Orders, and Court Based Restraining Order Clinics: locations and hours.

• Protected Person completes:
• (1) OSC/Temporary Restraining Orders (OSC/TRO) DV-110

 
• (2) Application and declaration for Order DV-100

 
• (3) Must complete detailed declaration (statement under penalty of perjury) to support the application.  Courthouse clinics provide assistance preparing this declaration.

• 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 of TRO.

• 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 Waivers.)
• 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
• a Temporary Restraining Order and Order to Show Cause,
• an Application and Declaration for Order,
• a blank Responsive Declaration (form DV-120)

 
and if you have a child with the Defendant,
 
• a Child Custody, Visitation and Support Attachment (DV-100A),
• a Declaration Under Uniform Child Custody Jurisdiction Act form (MC-150)
• 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.

• 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.)

• 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 of  DVPA:

• Specific relationship
• 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

•   A child of a party

• 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 at this link.)

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.
 

Where Do 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 District.

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
 

The Forms 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.

DV-110        Order to Show Cause and Temporary Restraining Order*
 

DV-100        Application and Declaration for Order*
 

DV-120        Blank Responsive Declaration
 

DV-140        Proof of Service*
 

DV-130        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:

LASC 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 have children:

 1296.31A        Child Custody and Visitation Order Attachment*
 DV-100A        Child Custody, Visitation and Support Attachment*
 MC-150          Declaration Under Uniform Child Custody Jurisdiction Act*
 1296.31A(1)    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:

1285.50           Income and Expense Declaration Face Sheet

1285.50 (A)    Income Information
1285.50 (B)    Expense Information
1285.50 (C)     Child Support Information

And to be filed after the court hearing once a child support order has been made:

1296.31B         Child Support Information and Order Attachment *
OMB09700154     Wage Assignment Order* --

(instructions 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:

1296.15             Application and Order for Reissuance of OSC/TRO

 SAMPLE FORMS:* indicates sample Form.  See SAMPLE FORMS.  NOTE THESE ARE SAMPLES ONLY AND MAY NOT BE APPROPRIATE FOR YOUR CASE.

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 this 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.

Your Statement 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.

Important 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

• Location of the 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.”

• Your resulting injuries

• Witnesses to the abuse

• Specific threats or verbal abuse by the defendant (example: “Defendant threatened to ‘bash in’ my head if I attempted to leave the house.”)

• Medical attention sought

• 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 if any.

• 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.

Preparing 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.

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 policy.

• 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 be respectful.

• Submit an Order after hearing: Clinics often prepare a Restraining Order after Hearing that you can hand to the clerk before the hearing.

• 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 cannot serve.

• 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 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.