Domestic Violence Restraining Orders in San Diego County

Most people facing this question are in the middle of something frightening or destabilizing. Some have just lived through an incident with a partner or family member and are trying to work out whether the law can keep them, and their children, safe. Others have just been handed papers saying they must stay away from their own home or children, and they are trying to understand what that order means and what happens at the hearing. Either way, the questions are concrete: who qualifies, what the court needs to see, how long the order lasts, and what it does to a custody or divorce case already underway.

This article walks through how California law defines these orders, how they move through the court in San Diego County, and where they meet the contested custody and divorce issues that often follow.

If you are in immediate danger, call 911.

The Domestic Violence Prevention Act, found at Family Code sections 6200 through 6460, governs domestic violence restraining orders in California. Two definitions in that Act decide whether a case fits.

The first is "abuse." Under Family Code section 6203, abuse includes intentionally or recklessly causing or attempting to cause bodily injury, sexual assault, placing a person in reasonable apprehension of imminent serious bodily injury to that person or to another, and engaging in any behavior that has been or could be enjoined under section 6320. The statute adds a point many people do not expect: "Abuse is not limited to the actual infliction of physical injury or assault." Threats, stalking, harassment and repeated unwanted contact can qualify.

The second is "domestic violence," which is abuse against a person in a particular relationship with the respondent (the person the order is sought against). Under Family Code section 6211, covered relationships include a spouse or former spouse, a cohabitant or former cohabitant, a person in a current or past dating or engagement relationship, a person with whom the respondent has had a child, and certain children and relatives.

A civil harassment restraining order under Code of Civil Procedure section 527.6 is a different order, not a family-law order. For an overview of both, see the firm's page on restraining orders in San Diego.

A protective order in a domestic violence matter usually moves through as many as three stages, each with a different source and a different lifespan.

Emergency protective order (EPO). Under Family Code section 6250, a judicial officer may issue an emergency protective order when a law enforcement officer asserts reasonable grounds to believe, among other things, that a person is in immediate and present danger of domestic violence, or that a child is in immediate and present danger of abuse or of being abducted. An EPO is short by design; it expires at the earlier of the close of judicial business on the fifth court day after issuance or the seventh calendar day after issuance, giving the protected person time to go to court (Family Code section 6256).

Temporary restraining order (TRO). A TRO is issued ex parte, meaning the court decides based on one party's showing without the other side present. The Superior Court of California, County of San Diego issues these orders under Family Code section 6320 and the sections that follow it. Under section 6300(b), an ex parte order "shall not be denied solely because the other party was not provided with notice." A TRO generally stays in place until the hearing.

Restraining order after hearing. After notice and a hearing where both sides may appear, the court may issue a longer order (Family Code section 6340). Under Family Code section 6345, the personal conduct, stay-away and residence exclusion orders may last up to five years, subject to termination or modification by further court order. They may be renewed for five or more years, or permanently, without a showing of further abuse; a renewal request may be brought within the three months before the order expires.

Between the TRO and the hearing sits the service rule. Under Family Code section 243, the respondent must be personally served with the petition, any temporary restraining order and the notice of hearing at least five days before the hearing, unless the court shortens the time.

Family Code section 6320 lets the court order a party not to engage in a long list of conduct, including molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning, destroying personal property, contacting the other party directly or indirectly, coming within a specified distance, or disturbing the peace of the other party. On a showing of good cause, the court may extend protection to other named family or household members, and it may grant the petitioner exclusive care of a pet owned, possessed, leased, kept or held by either party or a minor child in their household.

Move-out orders. Under Family Code section 6321, the court may issue an ex parte order excluding a party from the family dwelling or another covered home, regardless of who holds title or the lease, but only on a showing of all three of these: facts showing the person staying has a right under color of law to possess the home; that the person to be excluded has assaulted or threatens to assault the other party, someone in their care or a minor child; and that physical or emotional harm would otherwise result. After notice and a hearing, section 6340(c) lets the court order a person out of a dwelling if it finds that physical or emotional harm would otherwise result to the other party, a person in that party's care, custody and control, or a minor child of the parties or of the other party.

Custody and visitation. Orders for custody, visitation and support can be made alongside a restraining order, and under section 6340 they survive the end of the protective order. Family Code section 3044 adds a major consequence. On a finding that a parent perpetrated domestic violence within the previous five years against the other parent, the child, the child's siblings or certain other people, there is a rebuttable presumption that awarding that parent sole or joint physical or legal custody is detrimental to the child's best interest. Neither the preference for frequent and continuing contact with both parents nor the preference for contact with the noncustodial parent may be used to rebut it, in whole or in part (section 3044(b)(1)). The firm's page on what hurts a child custody case looks at this presumption alongside other factors.

Firearms. A person subject to a domestic violence restraining order is generally prohibited from possessing firearms under California and federal law.

What it does not do. A restraining order does not end a marriage or divide the community estate. Those require separate family law proceedings. An intentional and knowing violation of a protective order is a misdemeanor under Penal Code section 273.6.

The legal test comes from Family Code section 6300: the court may issue an order if the evidence shows, "to the satisfaction of the court, reasonable proof of a past act or acts of abuse." Reasonable proof is a much lower bar than the criminal standard of proof beyond a reasonable doubt. No arrest or conviction is required.

The statute also says the court "may issue an order under this part based solely on the affidavit or testimony of the person requesting the restraining order." That is why a TRO can issue on a written declaration alone, if it shows reasonable proof of abuse. Supporting evidence commonly includes police reports, medical records, photographs, text messages, emails and voicemails received by the petitioner, and witness declarations.

At the hearing for a restraining order after hearing, both parties may present evidence and testimony, and the court must consider whether failure to make the orders may jeopardize the safety of the petitioner and the children for whom custody or visitation orders are sought (Family Code section 6340(a)(1)). For a respondent who believes the allegations are untrue, this hearing is the place to answer them; section 243 allows the respondent to file a response that explains or denies the allegations.

Evidence must be gathered lawfully. Accessing another person's phone, email or social media accounts without authorization is not a lawful way to collect it. Recording carries its own limits: Penal Code section 632 generally prohibits recording a confidential communication without the consent of everyone in it, subject to limited statutory exceptions. Messages a person has received, photographs they took and records they can request are the ordinary building blocks.

For people going through the process without a lawyer, the court's Self-Help Center at sdcourt.ca.gov and the San Diego Volunteer Lawyer Program are resources in San Diego County.

When a restraining order case also involves children, custody often becomes the most contested part of it. Under Family Code section 3170, if custody or visitation is contested, the court must set the contested issues for mediation. In San Diego County, that mediation is child custody recommending counseling with the court's Family Court Services.

Under section 3170(b), domestic violence cases are handled by Family Court Services in accordance with a separate written protocol approved by the Judicial Council.

Under Family Code section 3183(a), the mediator, called a child custody recommending counselor (Family Court Services calls this person the Family Court Counselor), may, consistent with local court rules, make a recommendation to the court, if it is first provided in writing to the parties and their attorneys before the hearing. Family Court Services states that if no agreement is reached, the counselor makes a recommendation and the court hearing proceeds.

The judge decides custody. The recommendation is one input, not an order. Where domestic violence is found, the section 3044 presumption described above applies to that decision. The firm's page on custody battles in San Diego covers this counseling process in more detail.

Petitions are filed with the Superior Court of California, County of San Diego. The court's Self-Help Center at sdcourt.ca.gov provides forms and instructions, and the statewide California Courts self-help portal explains restraining order forms in plain language. Under section 6300(c), the clerk may not reject an ex parte request submitted on the mandatory Judicial Council forms that includes all required forms and identifies both parties.

After filing, a judicial officer reviews the request and may issue a TRO. A hearing must be held within 21 days, or 25 days if good cause appears to the court, of the date the TRO was granted or denied (Family Code section 242).

Next comes service. The respondent must be personally served with the petition, the TRO if one was issued, and the notice of hearing at least five days before the hearing, unless the court shortens the time (Family Code section 243). If a respondent appears to be evading service despite diligent effort, section 6340(a)(2) allows the court to permit an alternative method of service.

At the hearing, both parties may appear, present evidence and be represented by counsel. There is no filing fee for a domestic violence restraining order petition; California law does not charge one. The firm's page on emergency family court orders explains how these requests relate to other urgent orders.

A restraining order request can be filed as a standalone case or within a pending divorce or custody case in the Superior Court of California, County of San Diego. Safety and custody orders can be in place long before property or support is decided.

Custody orders made with a restraining order are subject to the section 3044 presumption discussed earlier. When a child faces immediate harm or a risk of removal from California, a separate path exists, covered on the firm's page on emergency custody in San Diego.

Property and support are separate. A restraining order does not end the marriage or divide the community estate; those issues move through the divorce under the Family Code. Timing matters here too. Under Family Code section 2339, a divorce judgment cannot become final to end the marriage until six months have passed from the date the summons and petition were served or the date the respondent appeared in the case, whichever occurs first. The clock does not run from filing, and the court may extend it for good cause.

Paying for representation is a real concern when one spouse controls the money. Family Code section 2030 directs the court in a divorce or legal separation to ensure each party has access to legal representation, including by ordering one party to pay the other's reasonable attorney's fees and costs. When a request is made, the court must make findings on whether there is a disparity in access to funds and whether one party can pay for both sides' representation.

San Diego Family Law Advocates practices California family law only.

A restraining order case moves quickly, and the hearing often shapes what happens next with the children, the home and a divorce that may already be contested. Questions that often come up include how evidence is evaluated in restraining order cases, how the section 3044 presumption operates in custody decisions, what to expect in Family Court Services counseling, and how a restraining order case may interact with property and support issues in a divorce. A consultation is a place to raise those questions with the firm, whether a person is asking for protection or responding to a request.

To talk with the firm about a domestic violence restraining order, call San Diego Family Law Advocates at 858-758-2288 for a confidential consultation.