Emergency protective orders may include any of the following
specific orders, as appropriate:
Child Custody/Visitation: The court my issue
an order determining the temporary care and control of any minor
child of the endangered person and the person against whom the
order is sought (Ca Fam § 6252(b))
Personal Conduct Restraining Orders: An 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." [Ca Fam §§ 6218(a), 6320,
6340(a)]
Dwelling Exclusion: An 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 whatever period and on whatever
conditions the court determines, "regardless of which party
holds legal or equitable title or is the lessee of the dwelling."
[Ca Fam §§ 6218(b), 6321(a), 6340(a)]
An ex parte dwelling exclusion order may issue only on a showing
of all of the following (Ca Fam § 6321(b)):
Possession: Facts sufficient for the court to ascertain
that the party who will remain in the dwelling "has a
right under color of law to possession of the premises."
[Ca Fam § 6321(b)(1)]
Threatened Assault: That the party to be excluded
has assaulted or threatens to assault the applicant party,
or any other person under the applicant's care, custody and
control, or a minor child of the parties or of the applicant.
[Ca Fam § 6321(b)(2)]
Resulting Harm: That "physical or emotional harm"
would otherwise result to the applicant, to any person under
the applicant's care, custody and control, or to a minor child
of the parties or of the applicant. [Ca Fam § 6321(b)(3)]
Effectuating Orders: An order enjoining a
party from any other specified behavior that the court deems
necessary "to effectuate" § 6320 (assaultive
conduct/harassment) or § 6321 (dwelling exclusion) orders.
[Ca Fam §§ 6218(c), 6322, 6340(a)]
Recording Prohibited Communications: A judge
issuing a domestic violence restraining order may, upon the
victim's request, also include a provision permitting the victim
to record any prohibited communication made to him or her by
the perpetrator. (Absent such an order, the surreptitious recording,
although made to document evidence of a crime, could run afoul
of state and federal wiretap and invasion of privacy laws[Ca
Penal § 633.6(a)]
Mandatory Firearms Restraining Order: A broad
restraining order concerning the possession and acquisition
of firearms automatically takes effect by operation of law when
the court issues a Ca Fam § 6218 domestic violence protective
order. A person subject to a Ca Fam § 6218 protective order
is prohibited from owning, possessing, purchasing, receiving,
or attempting to own, possess, purchase or receive, any firearms
for so long as the protective order remains in effect. Upon
issuance of a § 6218 protective order, the court must order
the responding (restrained) party to relinquish any firearm
in (or subject to) his or her immediate possession or control
within 24 hours of being served with the order--by either surrendering
the firearm to local law enforcement or selling the firearm
to a licensed gun dealer (per Ca Penal § 12071). Further,
he or she must submit proof of having done so within 72 hours
after receiving the relinquishment order. [Ca Fam § 6389(c)
(amended Stats. 2004, Ch. 250)]
Wiretap Order: A judge issuing a domestic
violence restraining order may, upon the victim's request, also
include a provision permitting the victim to record any prohibited
communication made to him or her by the perpetrator.
