After a spouse or dating partner applies for a restraining order, s/he may be asked to agree to a mutual order. This request is usually made in the few moments right before the hearing in Family Court. The applicant seeking protection should refuse.
Why? Because mutual restraining orders are extremely hard to enforce. If you have a mutual restraining order with a stay-away provision and run into the other party in the aisle at the Home Depot or Raley’s, which one of you must immediately turn and leave? Which of you is required to suddenly say goodbye to your friends and family at the River Cats game because your “ex” showed up?
Our firm recently worked on a domestic violence case involving (the unfortunately common scenario of) a physical fight at a custodial exchange. Sacramento Police arrived on the scene and quickly assumed that the person with more injuries was the “victim” and arrested the “winner” of the fight. Later, the surveillance video indicated that the “victim” had initiated the fight. The Sacramento District Attorney subsequently elected not to file a criminal complaint against the “winner”.
Imagine the predicament of mutual restraining orders for law enforcement. When police make an arrest for a violation of a mutual protective order, the officer is required to identify the dominant aggressor of the incident. Penal Code §836(c)(3). How can they be expected to sort through the inevitable lies and drama after the confrontation has passed?
When will a Family Court issue a Mutual Restraining Order?
A Family Court will only issue a mutual restraining order if:
- Both parties personally appear in court and each party presents written evidence of abuse or domestic violence, and
- The Court makes detailed findings of fact that both parties acted primarily as aggressors and that neither party acted primarily in self-defense.
In other words, parties can no longer simply agree to a mutual restraining order. It is an appealable error for a California Family Court to issue a mutual order after one party has applied and both parties then agree to a mutual order unless the court makes the required findings that both parties acted as aggressors. See Monterroso v Moran (2006) 135 Cal.App.4th 732, 736.
In a true “Spy vs. Spy” scenario where both parties are the aggressors, the Family Court will treat a mutual order as two separate restraining orders. The court then issues no restraining orders (denying both applications), one restraining order against one party (denying the other party’s application), or two restraining orders (approving both applications). In the event that both restraining orders are granted, both orders should be on separate forms form DV-130.
We Can Help
Are you seeking or defending a restraining order and live in Sacramento, Placer, El Dorado, or Yolo County? The domestic violence attorneys at Hughes Law Group can help. Call us now or set up an appointment online.