When a relationship has become volatile, dangerous, or even violent, requesting a restraining order is often the best decision. However, although getting a restraining order in California may seem simple and straightforward, there are some technicalities that can complicate matters considerably.
Mutual Domestic Violence Restraining Orders in California
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.
What is a Mutual Domestic Violence Restraining Order?
In the state of California, a mutual order of protection (also called a CA mutual domestic violence restraining order) forbids both parties from having contact with each other. The order prohibits both involved parties from interacting with the other in any way, including interfering with their privacy or basic rights. Family Code §6305.
Why You Should Refuse a Mutual Order of Protection
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, 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?
Opposing counsel may urge unrepresented individuals to consent to a mutual order. Often, the rationale is that there should be no reason to object to a mutual order if you don’t plan on having contact with the other person.
However, accepting a mutual order of protection is almost always a flawed decision. For example, if you are being abused by your spouse, you may consent to a mutual order in your attempts to seek protection through a CA court. However, the abuser may retaliate by falsely reporting a violation, which can have serious consequences for your future (as well as custody cases, immigration matters, and more).
Know that you cannot be forced to consent to a mutual order of protection. You always have the right to a hearing, in which the other party will need to prove his/her case against you in front of a judge.
How a Mutual Protection Order Can Cause Major Complications
Our firm recently worked on a domestic violence case involving 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 presumed “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.
If 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). If both restraining orders are granted, both orders should be on separate forms form DV-130.
Find a Sacramento Domestic Violence Attorney Now
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. Our extensive expertise and skill will give you an advantage in seeking the protection you need to move forward with your life.
Call our restraining order attorneys or set up an appointment directly with a family lawyer on our site to take your first steps towards a better future today.