Domestic Violence FAQ

• What is a temporary restraining order?
• How do I obtain a permanent restraining order?
• Does domestic violence have an effect on child custody orders?
• If I file a domestic violence restraining order, how does the judge weigh the evidence?
• What does CLETS stand for?
• Does domestic violence affect spousal support?
• Can the court make child custody and visitation orders upon the filing of a restraining order?
• Can the sheriff serve a restraining order?

What is a temporary restraining order?

A domestic violence temporary restraining order, or DVTRO, is a court order that lasts 21 days at a maximum.  These orders can require the restrained party to perform certain acts and/or prevent the restrained person from performing certain acts, such as move from the family or jointly occupied residence, turn in firearms to law enforcement, avoid contacting in any way the other party, abide by certain temporary child custody orders, and so forth. 

How do I obtain a permanent restraining order?

If the court grants an emergency restraining order or a temporary restraining order, an evidentiary hearing will be scheduled in which the applicant and respondent will be ordered to appear in court to determine whether there is sufficient evidence to justify a permanent restraining order.  The court may grant such an order for up to a maximum of 5 years. 

Does domestic violence have an effect on child custody orders?

Under California law, the court is required to consider domestic violence issues in making orders regarding child custody and visitation as well as child and spousal support.  This means that if the court finds that there has been domestic violence by one parent, the court may find that it is not in the child’s best interest to award that parent legal or physical custody of the child.  However, the court may require corroboration before it will consider allegations of abuse in making child custody orders.  This means that an abused spouse must provide some evidence of abuse, such as reports from the police or child protective services, pictures evidencing abuse or third party declarations of persons witnessing abuse.

If I file a domestic violence restraining order, how does the judge weigh the evidence?

Domestic violence restraining orders in the family court are founded upon the same burden of proof as other civil actions.  This means that the court uses the standard of preponderance of the evidence to weigh whether an act of domestic violence has occurred.  In some cases, even if the court finds that domestic violence occurred or likely occurred, but there is little to no chance that future domestic violence will occur because the parties are already living apart, for example, the court may refuse to issue a permanent DV restraining order.  This is due to the fact that domestic violence restraining orders issued in family law cases, even though they are not criminal or even quasi-criminal in nature, may dramatically affect a person’s right to certain civil liberties, such as ownership of firearms or freedom to participate in society.   

What does CLETS stand for?

CLETS stands for California Law Enforcement Telecommunication System.  CLETS is a police database that is designed to ease the enforceability of restraining orders and provide greater protection for persons who are granted restraining orders.  If the court issues a domestic violence restraining order in your case, it will be entered into the CLETS system so that the restrained party will likely be arrested if he or she violates the order. 

Does domestic violence affect spousal support?

The court is required to consider domestic violence as a factor in calculating permanent spousal support.  There is also a presumption against granting spousal support to the spouse who committed domestic violence.  This means that the spouse who committed acts of domestic violence will likely not be granted spousal support.

Can the court make child custody and visitation orders upon the filing of a restraining order?

The applicant of a DVTRO may request temporary custody of a child involved in the case, so long as there is an allegation of harm to the child.  The court may also make an order protecting the child if there is a risk of harm to him or her.

Can the sheriff serve a restraining order?

Yes.  Under California law, you must serve, or provide, the restrained party with a copy of the restraining order by “personal service”.  Any person over the age of 18 who is not a person protected by the order or a party to the action can serve the order.  You can also arrange for the sheriff’s department to deliver the order to the restrained party, which is done free of charge.