Criminal Protective Order vs Domestic Violence Restraining Order

In August of 2017, Wife [W] filed a request for a Domestic Violence Restraining Order (DVRO) against Husband [H].  In her declaration, she stated that H had slapped her across the face, pulled her hair and dragged her to the floor by her hair.  Her ten-year-old son witnessed the altercation.  H then threatened to kill W or their son if they told anyone about it.

However, W filed a criminal complaint against H as well.  He later pleaded guilty to willful infliction of corporal injury upon a spouse.

At sentencing, a Criminal Protective Order (CPO) was issued in Alhambra Criminal Court restraining H from any contact with W; to stay at least 100 yards away from her, and leave the family home.  The CPO was to be effective for three years.

W’s DVRO request to have H restrained from W’s mother and other issues were denied pending a full hearing on the matter in family court.  The hearing was set for September of 2017.

On the day of the hearing W and H met for mediation first (as was procedure where children were involved).  Neither parent was represented by an attorney.  In mediation, W and H agreed to custody and visitation of their children with H going to W’s mother’s house to pick up and drop off the children.

W still wanted the court to grant W’s DVRO.  The judge noted that a CPO was in place, and that it was effective for three years.  The judge did not understand why W would want the same order from family court.  The judge stated, “I don’t see any reason for me to make this order because you have that criminal protective order that takes priority over anything I do anyway.”  Then the judge denied her motion for a DVRO stating he would not and could not re-litigate another court’s order.  If she wanted the DVRO, she would have to go back to the Alhambra Criminal Court.

W appealed arguing that a CPO does not prevent the filing of a DVRO.  She was provided legal representation by non-profit domestic violence prevention organizations.

The Appellate Court agreed with W.

The Domestic Violence Protection Act (DVPA) states that the “…remedies provided in this division are in addition to any other civil or criminal remedies that may be available to the petitioner…  When a statute states that its remedies are in addition to other available remedies, its remedies are nonexclusive… [Family Code] Section 6383, subdivision (h)(2) discusses the priority of enforcing protective orders ‘[i]f there is more than one order issued,’ including ‘[i]f there are both civil and criminal orders regarding the same parties.’’

Thus, the DVPA makes clear that both criminal and civil protective orders may coexist and address the same parties. 

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