California Family Law News and Commentary


Domestic Violence Restraining Order Primer

Would you accept a mutual restraining order?
         © Robert Kroll,  November 6, 2003

A California Domestic Violence Restraining Order Is Not A Shield
If an enraged, obsessed, drunk, stoned or mentally ill person is bent on attacking you, it will not be a restraining order that will save your life or limb. If it could, you would not need it. The order is a piece of paper with writing on it. It is filed in the local county superior court and is also on file in the local police or sheriff’s department. It is not bulletproof or capable of stopping a fist or a bat or a knife. It only has preventative power if you happen to see your attacker from more than 100 yards away and call for help.

What will protect you?

A strong, locked door is the best protection. Vigilance is a close second – watch where you are going and stay among people who can protect you. A well-placed surveillance camera, either still or video, with sound will also provide a warning, and perhaps, irrefutable evidence that will discourage an attack. A 911 call to the police or sheriff alerting law enforcement that you are being threatened, assaulted or about to be attacked, is helpful. However, excessive 911 calls can result in loss of credibility and a reluctance of law enforcement to respond.

Firearms NOT Recommended:

Rifles, shotguns and handguns are recommended only for those extremely familiar, well trained and confident in their use and handling. Otherwise, firearms are more likely to be used against you or your family, or will misfire.

Why Get a Domestic Violence Restraining Order

A restraining order can prohibit the restrained person from owning or possessing a firearm   or other dangerous weapon. It can authorize you to secretly tape record telephone or other conversations, an act that is otherwise illegal (see California Penal Code §632). It can require the restrained party to attend domestic violence counseling sessions. It can hold the possibility of jail over a person with a recent history of violence.

Should you consider a Mutual Restraining Order?

If both parties have reached a point where they want peace, tranquility and solitude, a peaceful parting of the ways with each other after a period of boisterous, threatening and injurious fighting, a mutual restraining order can be an excellent alternative to a unilateral one for several reasons.

A mutual order can be obtained without a trial. It can be gotten simply through a written or oral agreement, on the record in court in front of a judge. It is a negotiated settlement.

A mutual order does not require either party to admit fault. Often, if not always, both parties contributed to the domestic discord.

These orders can be crafted to address exactly the kinds of issues that are likely to arise: fights at the childrens’school or day care (e.g. only one parent picks the children up and the other drops the children off at school); parties are allocated or assigned periods when they use certain facilities to avoid contact and conflict.

A mutual order does not have the same stigma at work, and in society, that a single order does. In Alameda County, California, these orders are sometimes referred to as “no ham”orders – ham being an acronym for harassment,   annoyance or molesting. A “no ham”order has the same effect for the most fearful party as it does for the other party. It can be a shortcut to getting the result that everyone wants.

A mutual order requires that both parties file a petition for a protective or restraining order. A California judge may not issue a restraining order for a party who has not requested one and made a “prima facie” (i.e. “on its face”) case for such an order.

Court Avoidance

Mutual restraining orders, or single restraining orders in fact, can be obtained without a court appearance if the parties can reach an agreement outside of court to implement such orders. A “stipulation for order” can be drafted for the parties and their attorneys, if any, to sign and submit to the judge for her/his signature. Once the judge signs the stipulation it becomes an order of the court. It is valid for up to three years, but, by agreement, can be for a shorter period of time.

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