What is the legal definition of domestic violence in California?
This section defines domestic violence for the purposes of getting a domestic violence protective order.
Domestic violence is defined as when your current or former spouse, boyfriend / girlfriend, someone you have a child in common with, someone you live(d) with, or someone you are related to through blood or marriage1 does one of the following:
- causes or attempts to cause you physical injury;
- sexually assaults you;
- makes you fear that you or another person is in danger of immediate, serious physical injury;
- molests, attacks, batters (uses force), or strikes you;
- stalks you;
- threatens or harasses you - either in person or through phone calls, emails, or other methods;
- destroys your personal property; or
- disturbs your peace.2
Note: If the acts of the abuser do not fit in this definition or if you do not have the specific relationship with the abuser that is mentioned above, you may still be eligible for a Civil Harassment Order. If you are elderly or a dependent adult, you may qualify for a protective order if you are being physically abused, neglected, financially abused by anyone or deprived of needed care by your custodian (caretaker). See Restraining Orders to Prevent Elder or Dependent Adult Abuse for more information.
1 Ann.Cal.Fam.Code § 6211
2 Ann.Cal.Fam.Code §§ 6203; 6320(a)
What types of orders are there? How long do they last?
There are three types of domestic violence restraining orders:
Emergency Protective Order
If a police officer responds to a domestic violence call, the police officer can call a judge (anytime, day or night) and ask that an emergency protective order be issued for you, which goes into effect immediately.1
A judge will only issue an emergency protective order if s/he believes that there is an immediate and present danger of domestic violence or that a child is in immediate or present danger of abuse or abduction (kidnapping) by a parent or relative and that the order is necessary to prevent domestic violence, child abuse or child abduction.2
An emergency protective order can last only five business days or seven calendar days (whichever is shorter).3 An emergency protective order is supposed to give you time to go to court to ask for a domestic violence restraining order, which lasts longer. In the emergency order, the judge can include most of the protections that you can get in a regular DVRO, such as removing the abuser from the home and ordering him to have no contact with you. It can also give you temporary custody of your children.4 For other remedies that may be included, see How can a DVRO help me?
Temporary (ex parte) Restraining Order
When you go to court to apply for a restraining order, the clerk will give you a date, usually within three weeks, when you will have to come back to court for a full hearing. If you are in immediate danger and need protection right away, you can ask for a temporary (ex parte) restraining order, which can order the abuser to leave the home, have no contact with you, and offer many other forms of protection that are listed in How can a DVRO help me? 5
Restraining Order After Hearing
Whether or not you get a temporary order, you will be scheduled for a hearing to get a final DVRO. After having a court hearing, a judge can grant you a “restraining order after hearing” that can last up to five years. However, if there is no termination date on the order, the order will last three years from the date it was issued.6 See How can a DVRO help me? to read about all of the protections that you can get in a DVRO issued after a hearing. During the last three months of the order, you can ask the judge to have the order extended for another five years, or permanently. The judge can make this extension without you having to prove any further abuse.7
1 See Ann.Cal.Fam.Code § 6250
2 Ann.Cal.Fam.Code §§ 6250; 6251
3 Ann.Cal.Fam.Code § 6256
4 Ann.Cal.Fam.Code § 6252(a) & (b); see CA Courts website
5 See Ann.Cal.Fam.Code § 6320; 6321
6 See Ann.Cal.Fam.Code § 6345(c)
7 Ann.Cal.Fam.Code § 6345(a)
What protections can I get in a DVRO?
A domestic violence restraining order (DVRO) can:
- Order the abuser not to do the following to you, your children, and/or your family/household members:
- assault, threaten, abuse, follow, stalk, sexually assault, destroy the property of, come within a certain distance of, disturb the peace of, harass or make contact (directly or indirectly) on the telephone or by other means.
- Grant you the exclusive care, possession, or control of any animal owned or held by either you, the abuser, or a child residing in either of your households and order the abuser to stay away from and not harm the animal;1
- Order the abuser to be removed from the home you are both living in together even if you do not own the home or you are not the tenant;2
- Prohibit the abuser from possessing or purchasing a firearm or ammunition;3
- Order the abuser to pay child support and spousal support (if you are married)4 - see Can I get support when I file a DVRO?;
- Grant you temporary possession of things that you own together such as a second home, a car, a computer, etc. The judge can also order the abuser to pay ongoing debts associated with those items; 5
- Order the abuser to pay back money you lost for missing work or other expenses (such as ambulance, medical, dental, shelter, counseling and/or legal fees) that resulted from the abuse;6
- Order the abuser to pay your attorney fees if you are unable to pay them and if the abuser earns more money than you do;7
- Order the abuser to attend a batterer’s treatment program or other counseling service;8
- Transfer a shared cell phone account into your name alone so that you can keep your existing wireless telephone number and the wireless numbers of any minor children in your care;9
- Give you temporary child custody and visitation. The judge can decide where the children will live, which parent will make decisions affecting the children, and how the children will spend time with each parent (including where, when, and whether that time is supervised or not). Note: Any order for custody, visitation, or support that is made within your DVRO will continue to be effective even when the DVRO ends. You may want to ask the judge to specifically write this fact into the DVRO to make future enforcement of it easier;10 and
- Grant anything else you ask for that the judge agrees to.
Whether a judge orders any or all of the above depends on the facts of your case.
1 Ann.Cal.Fam.Code §§ 6320(a); 6340(a)
2 Ann.Cal.Fam.Code §§ 6321(a); 6340(c)
3 Ann.Cal.Fam.Code § 6304
4 Ann.Cal.Fam.Code § 6341
5 Ann.Cal.Fam.Code § 6324
6 Ann.Cal.Fam.Code § 6342
7 Ann.Cal.Fam.Code § 6344
8 Ann.Cal.Fam.Code § 6343
9 Ann.Cal.Fam.Code § 6347(a)
10 Ann.Cal. Fam.Code §§ 6323; 6252; 6340(a)
I don't have a lawyer but I am afraid to face the abuser in court by myself. What can I do?
You don’t have to go to court alone. You can bring a “support person” with you so that you feel safe. A support person can be a friend, neighbor, church official, family member, or anyone else that you would like to have in court with you to help give you moral support. There is no training or certification necessary to become a support person, so whoever you choose does not need to take any sort of class before attending court with you.
Your support person can go with you to court to get a protective order, and if you don’t have a lawyer, s/he can sit beside you at the table where the lawyer would normally sit.1
1 Ann.Cal.Fam.Code § 6303
If the abuser lives in a different state, can I still get an order against him/her?
When you and the abuser live in different states, the judge may not have “personal jurisdiction” (power) over an out-of-state abuser. This means that the court may not be able to grant an order against him/her.
There are a few ways that a court can have personal jurisdiction over an out-of-state abuser:
- The abuser has a substantial connection to your state. Perhaps the abuser regularly travels to your state to visit you, for business, to see extended family, or the abuser lived in your state and recently fled.
- One of the acts of abuse “happened” in your state. Perhaps the abuser sends you threatening texts or harassing phone calls from another state but you read the messages or answer the calls while you are in your state. The judge could decide that the abuse “happened” to you while you were in your state. It may also be possible that the abuser was in your state when s/he abused you s/he but has since left the state.
- If you file your petition and the abuser gets served with the court petition while s/he is in your state, this is another way for the court to get jurisdiction.
However, even if none of the above apply to your situation, it doesn’t necessarily mean that you can’t get an order. If you file, you may be granted an order on consent or the judge may find other circumstances that allow the order to be granted.
You can read more about personal jurisdiction in our Court System Basics - Personal Jurisdiction section.
Note: If the judge in your state refuses to issue an order, you can file for an order in the courthouse in the state where the abuser lives. However, remember that you will likely need to file the petition in person and attend various court dates, which could be difficult if the abuser’s state is far away.