What is the difference between a Temporary Restraining Order (TRO) and a Permanent Restraining Order?
A Temporary Restraining Order (TRO) is a short-term protective order issued by the court to provide immediate protection. It typically remains in effect until the court holds a hearing to determine whether a longer-term order should be granted. Even though it is temporary, a TRO is a legally binding court order and fully enforceable by law enforcement.
A TRO can often be issued without the restrained person being present in court. The court reviews the requesting party’s written declaration and may grant protection based on that initial showing.
A Permanent Restraining Order (often called a DVRO) may be issued after a noticed court hearing where both parties have the opportunity to present evidence and testimony. If granted, it can last up to five years and may include additional protections or long-term orders.
What kind of proof is required to obtain a Temporary Restraining Order?
The standard to obtain a TRO is relatively low compared to what is required at the full hearing. The court reviews written statements (declarations) and any supporting evidence provided.
Judges often err on the side of caution when deciding whether to issue temporary protection, since the order is short-term and intended to prevent potential harm until a full hearing can take place.
For a permanent restraining order, however, stronger evidence and testimony are typically required.
The applicable Family Law Codes are Sections 6320 & 6203.
The burden of proof is preponderance of the evidence and not clear and convincing or beyond a reasonable doubt
Does it matter if the police did not arrest the other party?
Not necessarily.
A restraining order can be granted even if:
- No arrest was made
- No criminal charges were filed
- There was no criminal conviction
Family court and criminal court are separate systems. The family court judge makes an independent determination based on the evidence presented.
However, police reports, photographs, medical records, or witness statements can be important evidence in a restraining order case.
What happens after the court grants a Temporary Restraining Order?
Once a TRO is issued:
- The court will schedule a hearing for a permanent restraining order (normally within 21 calendar days).
- You will receive stamped copies of the signed order.
- The restrained person must be personally served with:
- The Temporary Restraining Order
- Notice of the hearing
- All filed documents
- The Temporary Restraining Order
The order is not enforceable until proper service has been completed.
How long does a domestic violence restraining order case take?
A temporary restraining order can often be issued the same day in San Diego Family Law Court. A hearing to determine whether a longer term restraining order should be granted is typically scheduled within approximately three weeks.
Domestic violence cases move quickly and should be handled promptly with experienced legal guidance.
Can the sheriff serve the restraining order for me?
Yes.
In San Diego County, the sheriff’s department will generally serve Domestic Violence Restraining Orders at no cost. You must provide them with the filed documents and sufficient information to locate the restrained person.
Service must be completed before the court hearing can proceed.
What happens at the hearing for a permanent restraining order?
At the hearing, both parties have the right to present evidence and testimony.
This may include:
- Written declarations
- Witness testimony
- Cross-examination
- Photographs, text messages, emails, or medical records
The judge will evaluate credibility, weigh the evidence, and determine whether a longer-term restraining order is warranted.
Some hearings are brief. Others may take several hours or even multiple days depending on the complexity of the case.
Can the court make child custody or visitation orders in a domestic violence case?
Yes.
If a restraining order is issued, the court has authority to make custody and visitation orders. These may include:
- Sole legal or physical custody
- Supervised visitation
- Exchanges at neutral locations
- Protective conditions
California law creates a rebuttable presumption under Family Code § 3044 that a person found to have committed domestic violence should not have custody. This presumption can be challenged with sufficient evidence.
If no underlying custody or divorce case exists and the restraining order is denied, the court may not have jurisdiction to make custody orders.
Does a restraining order affect child support or spousal support?
It can.
The court has authority in a domestic violence case to order:
- Child support
- Spousal support (alimony)
- Attorney’s fees
- Payment of certain debts
To request financial support, the requesting party must file an Income and Expense Declaration. This document discloses income, expenses, and assets and is signed under penalty of perjury.
It is important to affirmatively request support at the hearing, courts may not automatically address it unless properly raised.
Can the court order someone to move out of the family home?
Yes.
The court can issue a “move-out order” as part of a Temporary or Permanent Restraining Order. This may require the restrained person to leave the shared residence, even if their name is on the lease or title.
The court’s primary concern is safety and prevention of further harm.
Can I record phone calls from the restrained person?
In California, recording phone calls without consent is generally illegal.
However, in certain domestic violence cases, the court may specifically authorize recording communications for safety or evidentiary purposes. If the court order permits recording, it must be followed exactly as written.
Absent explicit court authorization, recording another person without their knowledge may violate California law.
What if the other person owns firearms?
Once a Temporary or Permanent Restraining Order is issued and served, the restrained person must:
- Surrender any firearms
- Sell or transfer them to a licensed dealer
- File proof of compliance with the court
Possessing a firearm while subject to a domestic violence restraining order is illegal in California and can result in criminal consequences.
If you believe there is an immediate safety risk involving weapons, contact law enforcement right away.
When Safety Is at Stake, Act Quickly
Restraining order cases move fast and can affect custody, housing, and firearm rights. Immediate legal guidance can make a significant difference.
Schedule a confidential consultation to discuss your situation and prepare for court.
