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0300-318.05 | Revision Date: 07/01/14
Overview
This is an overview of the different types of restraining orders that can be obtained through Juvenile Dependency Court, Family Law Court, Criminal Court and Civil Court.
TABLE OF CONTENTS
Firearms/Ammunition Possession
Domestic Violence/Intimate Partner Abuse (IPA)
Requesting an Order without Filing a Petition
Orders for Children under the Jurisdiction of Dependency Court
Case-Carrying CSW Responsibilities
IDC, DI or Case-Carrying CSW Responsibilities
When a CSW or Any Member of His/Her Family Has Been Threatened
Version Summary
This policy guide was updated from the 12/21/11 version, as part of the Policy Redesign, in accordance with the DCFS Strategic Plan.
Separating a child from their family home is a highly traumatic event for the child. In many cases, a Restraining OrderAn order issued by the court, which enjoins a person from engaging in a specified behavior or activity, limits the distance a person may approach a specific location and/or person, or excludes a person from a specific dwelling or place of business. See "Emergency Protective Order." (RO), which removes a person who is abusive from the home, reduces the risk level to such a degree that it may allow a child to remain safely in the home with the person who is being abused (i.e., the non-offending parent/caregiver).
A RO can be issued through Juvenile Dependency and Delinquency Courts, Family Law Court, Criminal Court, Probate Court or Civil Court. The various types of Restraining Orders include the following:
EPOs may be issued at anytime, whether or not Court is in session. Only a law enforcement officer can request the court to issue an EPO.
TROs may by issued only when Court is in session. A TRO expires at the following times:
ROs issued by another state are enforceable in California. The Foreign Restraining Order needs to be registered with our court in order to be entered in the Department of Justice (DOJ) registry.
Firearms/Ammunition Possession
When determining safety and risk, it is imperative that the assessment including inquiries regarding restraining orders (aka protective orders) as well as whether or not the involved parties are in possession of, or have access to, firearms and ammunition.
Pursuant to Senate Bill (SB) 320:
A law enforcement officer can request an EPO from a judge or court commissioner. An EPO may be issued only if the judicial officer finds both of the following:
A law enforcement officer who responds to a situation in which they believe that there may be grounds for the issuance of an EPO must inform the person who they have identified as the person who is being abused that they will be requesting an EPO. If that individual is a minor, their non-offending parent or guardian must be informed that they can request for law enforcement to obtain an EPO. An EPO is only valid if it is issued by a judicial officer after making the findings required by law and pursuant to a specific request by a law enforcement officer.
Dependency Court has the authority to issue EPOs, TPOs, and ROs for CSWs. Dependency Court can issue orders if a petition has been filed in court, and if the case is related to domestic violence. The Court has exclusive jurisdiction to issue Protective Orders on behalf of the children, caretakers, parents, legal guardian, CASA, social worker (former and current), or any other children or family members in the home as long as the dependency case remains open.
Dependency Court can issue orders prohibiting a person from the following:
A RO that is issued from Dependency Court may restrain or require the following:
There is no requirement that the child reside with the parent, legal guardian, or caregiver for the Court to issue a RO. Further, the Dependency Court can issue a RO against a third party that is not a party of the Dependency Court case.
A TRO that is issued without notice from the Dependency Court is limited in time and expires in fifteen (15) days or, if the Court deems necessary, it is good for twenty (20) days from the date the temporary restraining order is issued. A RO that is issued from the Dependency Court may be issued for up to three (3) years.
Anytime after a dependency petition has been filed and until the petition is dismissed or dependency jurisdiction is terminated, a CSW may file an application with the Dependency Court to apply for a RO to restrict any person from molesting, attacking, striking, sexually assaulting, stalking, or battering the child or any other child in the household; exclude any person from the dwelling of a person who has care, custody and control of the child; or, enjoin any person from behavior, including contact, threatening or disturbing the peace of the child by the Court's determination.
When Dependency Court is terminating a case with Family Law exit orders, the exit order must conform to Family Code Section 6218, pursuant to Welfare and Institutions Code 362.4. Family Law exit orders can contain Permanent Protective Orders. However, when requesting an extension of an RO, the Court has to find evidence that the victim has a "reasonable apprehension of future abuse" by a preponderance of the evidence.
Domestic violence and intimate partner abuse (IPA) are often used interchangeably in research, communications, etc. Throughout this policy, the use of the term "domestic violence" is used and shall be considered reflective of both domestic violence and IPA terminology. (Additional information regarding domestic violence can be found in the Assessment of Domestic Violence policy (0070-537.10).
In cases of domestic violence, the use of a RO is not a guarantee of safety for the family. Additionally, it can only afford protection in cases where the victim of violence requests or desires the protection of a RO. When assessing cases involving domestic violence, CSWs must not use the threat of removing a child from the home if a parent does not cooperate to obtain or enforce a restraining order. This approach is coercive and inappropriate, and it may encourage a parent to feign cooperation out of fear of losing their child, which can place the child at risk of harm.
Pursuant to Family Code Section 6200, Domestic Violence ROs are issued to prevent the recurrence of acts of "abuse" by a batterer. Abuse is defined under the Domestic Violence Prevention Act (DVPA) as either:
In matters involving domestic violence, the CSW may find it necessary to involve the Dependency Court after an EPO has already been issued by Family Law Court. This may occur when it is in the child's best interests to remain in the home of the non-offending parent/legal guardian/caregiver, but the Family Law Court order will not be able to meet the protective needs of the child. The CSW may also wish to consider a non-disclosure order, in place of and/or in addition to a Restraining Order, to protect the child.
In these situations, Intake and Detention Control (IDC) must be contacted prior to the expiration of EPO or TRO. In order to avoid placing the child at risk, the case must be calendared for a detention/arraignment hearing prior to expiration of the issued RO. If this is not done, the child will not be under the protection of either the RO or Dependency Court during the time between the expiration of the RO and the detention/arraignment hearing.
At the time of the hearing, Juvenile Court Services staff must request that the court issue an order restricting the offending person's access to the child in order to complete a thorough investigation and to continue to protect the child.
Family Law Court has the authority to issue EPOs, TPOs and ROs. A RO through Family Law Court must meet specific legal requirements, in particular there must be a recent violent assault or threat (usually within 30 to 60 days) and the parent seeking the order must write in a declaration detailing exactly why they fear the abuser. If a TRO is obtained, the parent must go back to Family Law Court for a permanent order.
When it appears that a non-offending parent/legal guardian/caregiver is willing and able to protect the child with the assistance of the Family Law Court, and it has been determined that Dependency Court intervention is not necessary, a RO may be used for the purpose of allowing the child to remain in the home. Dependency Court involvement can be requested even after a RO has been issued, if it has been determined that it is best interests of the child to remain in the home of the non-offending parent/legal guardian/caregiver, but the RO will not be able to meet the protective needs of the child.
A TPO that is issued from Family Law Court without notice is limited in time and expires in twenty (20) days or, if the court deems necessary, it is good for twenty five (25) days from the date the temporary restraining order is issued.
A RO that is issued from Family Law Court may be issued effective for up to five (5) years if the expiration date is written on the face of the restraining order. If the expiration date is not written on the face of the restraining order, then it is only in effect for three (3) years from the date issued.
A RO that is issued from Family Law Court may restrain or enjoin contact between the restrained person and the persons to be protected; may exclude the restrained person from the home, may limit visitation or make an order for no visitation, and make an order for no harassment. A Family Law Court may also make orders for use of personal property, child support, spousal support, and payment of debts and restraint on selling or destroying property.
Criminal Court ROs take precedence over any other RO. They are only in effect for the duration of the criminal court case and can be included as a term of the perpetrator's probation or parole. Even though the Criminal Court RO takes precedence, it does not mean that other courts cannot issue RO. There may be more than one order in effect. However, if the criminal court restraining order is more restrictive than the other, it is the order that takes precedence over the less restrictive orders.
The Civil Court can issue TROs and ROs for cases that involve parties that are not related and/or do not have a familial relationship or children in common. The time frames for obtaining the TRO and RO are the same as in Family Law and Dependency Courts.
Other protected persons may include any parent, legal guardian or current caregiver of the child whether or not that child resides with that parent, legal guardian or current caregiver.
The following procedures must be following if:
Case-Carrying CSW Responsibilities
IDC, DI or Case-Carrying CSW Responsibilities
Detention Report
JV-100, Juvenile Dependency Petition
JV-245, Application and Declaration for Restraining Order
JV-100, Juvenile Dependency Petition
JV-245, Application and Declaration for Restraining Order
EPO-001, Emergency Protective Order
0070-537.10, Assessment of Domestic Violence
0070-548.10, Disposition of Allegations and Closure of the Emergency Response Referral
0070-548.20, Taking Children into Temporary CustodyThe removal of a child from the home of a parent or legal guardian and placement or facilitation of placement of the child in the home of a non-offending parent, relative, foster caregiver; group home or institutional setting.Temporary custody also includes: placing hospital holds on children; situations in which the CSW interrupts an established Family Law Court custody or visitation orders when the CSW believes that if the order is carried out, the child would be placed in immediate risk of abuse, neglect or exploitation and the child is allowed to remain in the home of the non-offending parent; situations in which DCFS requests that law enforcement remove a child from the home of his or her parent/legal guardian and the CSW places the child with a relative or unrelated caregiver; and situations in which the child is living with a relative or an unrelated caregiver and all of the following conditions exist: child’s parent is asking for the child to be returned home, CSW believes that the return of the child to his or her parent would place the child at risk of abuse, neglect or exploitation, CSW does not allow the child to be returned to his or her parent; and, the child remains in the home of the relative or is placed in out-of-home care.
0080-502.25, Family Maintenance Services for Court and Voluntary Cases
0100-510.21, Voluntary Placement
0300-301.05, Filing Petitions
0300-303.07, Non-Disclosure Orders
0300-303.15, Writing the Detention Report
0300-503.30, WIC 385: Requesting a Change in Order
0300-503.94, Set-On/Walk-On Procedures
0300-506.05, Communication with Attorneys, County Counsel, and Non-DCFS Staff
0400-503.10, Contact Requirements and Exceptions
Management Directive 95-06, Acts/Threats of Violence Again Employees in the Workplace
FYI 07-43, Use of Restraining Orders in Cases of Domestic Violence
California Rules of Court (CROC), Chapter 8, Rule 5.630(a) – States that after a petition has been filed under section 300, 601, or 602, and until the petition has been filed under section 300,601, or 602, and until the petition is dismissed or dependency or ward ship is terminated, or the ward is no longer on probation, the court may issue restraining orders as provided in WIC, section 213.5.
CROC, Chapter 8, Rule 5.630(b) – States that an application for restraining orders may be made orally at any scheduled hearing regarding the child who is the subject of a petition under section 300, 601, or 602, or may be made by written application, or may be made on the court's own motion. The written application must be submitted on Judicial Council Form Application and Affidavit for Restraining Order (JV-245).
Family Code (FAM) Section 6218 – States that "Protective order" means an order that includes any of the following restraining orders, whether issued ex parte, after notice and hearing, or in a judgment:
An order described in Section 6320 enjoining specific acts of abuse,
An order described in Section 6321 excluding a person from a dwelling,
An order described in Section 6322 enjoining other specified behavior,
FAM Section 6240-6241 – Summarizes that the superior court in each county must designate at least one judge, commissioner, referee to be reasonably available to issue orally, by telephone or otherwise, emergency protective orders at all times whether or not the court is in session. Further, that the designated law enforcement officer be able to request or enforce an emergency protective order as referred to in section 6241.
FAM Section 6250.3 – States that an emergency protective order is valid only if it is issued by a judicial officer after making the findings required by Family Code Section 6251 and pursuant to a specific request by a law enforcement officer.
FAM Section 6251 – Outlines that an emergency protective order may be issued under certain conditions.
FAM Section 6275 – States that a law enforcement officer who responds to a situation in which the officer believes that there may be grounds for the issuance of an emergency protective order pursuant to Section 6250 of this code or Section 646.91 of the Penal Code, shall inform the person for whom an emergency protective order may be sought, or, if that person is a minor, his or her parent or guardian, provided that the parent or guardian is not the person against whom the emergency protective order may be obtained, that he or she may request the officer to request an emergency protective order pursuant to this part. Notwithstanding Section 6250, and pursuant to this part, an officer shall request an emergency protective order if the officer believes that the person requesting an emergency protective order is in immediate and present danger.
FAM Section 6320 and Welfare and Institutions Code (WIC) Section 213.5 – State if a petition has been filed and the matter is related to domestic violence, the Juvenile Court may issue an ex parte order enjoining a party from molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning, including, but not limited to, annoying telephone calls as described in Section 653m of the Penal Code, 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.
FAM Section 6321 – States that the court may issue an ex parte order excluding a party from the family dwelling, the dwelling of the other party, the common dwelling of both parties, or the dwelling of the person who has care, custody, and control of a child to be protected from domestic violence for the period of time and on the conditions the court determines, regardless of which party holds legal or equitable title or is the lessee of the dwelling.
FAM Section 6322 – States that the court may issue an ex parte order enjoining a party from specified behavior that the court determines is necessary to effectuate orders under Section 6320 or 6321.
FAM Sections 6389 – States that a willful and knowing violation of a protective order is a crime punishable as provided by section 273.6 of the penal Code.
Senate Bill (SB) 320 – Requires Courts to order perpetrators of domestic violence to relinquish firearms and ammunition, including the manner in which relinquishment shall occur. Further, the Court may consider the possession of firearms and ammunition by a perpetrator when determining physical and legal custody at the time jurisdiction is being terminated.
Welfare and Institutions Code (WIC) Section 304 – Summarizes that after a petition has been filed pursuant to Section 311, and until the time that the petition is dismissed or dependency is terminated, no other division of any superior court may hear proceedings regarding the custody of a child or the establishment of a guardianship for the child. All issues regarding the child's custody while under the jurisdiction of the juvenile court shall be heard by the juvenile court which may review any records that would be available to the domestic relations division of a superior court hearing that matter.
WIC Section 340.5 – Summarizes that when a social worker is assigned to provide child welfare and other services to a dependent child of the juvenile court, the juvenile court may for good cause shown, and after an ex parte hearing, issue its order restraining the parents of the dependent child from threatening
WIC Section 362.4 – States that when the juvenile court terminates its jurisdiction over a minor who has been adjudged a dependent child of the juvenile court prior to the minor's attainment of the age of 18 years, and proceedings for dissolution of marriage, for nullity of marriage, or for legal separation, of the child's parents, or proceedings to establish the paternity of the minor child brought under the Uniform Parentage Act, are pending in the superior court of any county, or an order has been entered with regard to the custody of that child, the juvenile court on its own motion, may issue a protective order, and an order determining the custody of, or visitation with the child, the social worker, or any member of the social worker's family with physical harm.
