Protective and Domestic Violence Orders

The Family Code authorizes the judge to issue "protective" and "domestic violence prevention" orders at any time. Protective orders are made in cases where the parties are married, such as a dissolution of marriage. Domestic violence orders apply in cases where the parties are not married but have an established personal relationship. The same kinds of orders are available in either situation. In this discussion the term "protective order" will apply to both types of cases.

Ex Parte Application

Ordinarily, a judge will issue an order only after a hearing in which the parties are allowed to offer evidence. However, where there the complaining party can show that "great or irreparable injury" will immediately occur or "reasonable proof of a past act or acts of abuse", the judge can issue a protective order on an "ex parte" basis. This means that the order will be issued based only on the court papers ("pleadings") that are submitted to the judge.

Definition of "Abuse"

"Abuse" that is sufficient to serve as a basis for an ex parte order is defined to include various kinds of conduct.

  • Intentionally or recklessly causing bodily injury
  • Attempting to cause bodily injury
  • Sexual assault
  • Placing a person in reasonable apprehension of imminent serious bodily injury to that person or another
  • Engaging in certain kinds of personal conduct, such as harassment, stalking and striking the complaining party, a family member or a member of the household.

Notification of Ex Parte Application

The party who is seeking the ex parte order must provide the other party or the other party's attorney with verbal notice of the request. This notice must be given by no later than 10:00 a.m. the court day before the ex parte appearance,

However, the court has the power to dispense with notice of the ex parte application. This occurs where the court believes that the offending party will commit the very act that is being restrained if he were given advanced notice of the request.

Types of Orders that Can be Issued on an Ex Parte Basis

The court has the power to issue various kinds of protective orders:

    • The court can issue what is commonly referred to as the standard personal conduct restraining order, which prevents a party from,
    • ". . . molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning, including, but not limited to, annoying telephone calls. . . destroying personal property, contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party, and, in the discretion of the court, on a showing of good cause, of other named family or household members."
    • The court can exclude a party from a dwelling. However, such an order can be made only if the requesting party can show that the other party assaulted or threatened to assault the requesting party or a child in the residence. If assault or the threat of it is not shown, the exclusion can be granted if the court finds that physical or emotional harm would be suffered by the requesting party or the children if the request is denied.

    Emergency Protective Orders

    The court can issue an "emergency protective order" where a law enforcement officer has reason to believe that any of the following are likely to occur:

    • A person is in immediate and present danger of domestic violence.
    • A child is in immediate and present danger of abuse by a family or household member.
    • A child is in immediate and present danger of being abducted by a parent or relative.
    • An elder or dependent adult is in immediate and present danger of abuse.

    The law requires that every court have a judge or commissioner available at all times to receive requests for an EPO from law enforcement agencies. This means that EPOs can be issued at any time of the day or night.
    When the judge believes that there is a sufficient basis for the issuance of an EPO, the judge will tell the law enforcement officer over the telephone to issue the order. The officer will then prepare the order on a form and then serve it on the person against whom the order has been issued.
    EPO's have a short life span. The Family Code provides that an EPO expires at the earlier of the following times:

    • The close of judicial business on the fifth court day following the day of its issuance.
    • The seventh calendar day following the day of its issuance.

    Unlike standard ex parte orders, a hearing date is not set when an EPO is ordered. If the protected party wishes to have the orders extended after they expire, that party must file a standard request for a restraining order, either by requesting an ex parte order or by filing for an order to show cause hearing.

    Orders Made After Hearing

    Regardless of the judge's ruling at the ex parte request, a full hearing is scheduled for approximately three weeks after the ex parte request. At the hearing, both sides will be given an opportunity to present their sides of the case to the judge. This is done either by way of declarations under penalty of perjury or live testimony.
    At the end of the hearing the judge will decide with, if any, orders are to be made. Any ex parte orders previously made automatically expire at the hearing, unless the judge specifically rules that those orders are to continue.

    Duration of Protective Orders

    The judge may grant the requested orders for a period of up to 3 years. If the protected person wishes the restraining order to be extended beyond that period, a new order to show cause must be filed when the original order is about to expire.