A Court May Issue a Mutual Domestic Violence Restraining Order Under the Domestic Violence Prevention Act Only if Both Parties Have Filed for Such Relief
On February 14, 2014, Isidora M. filed a request for a domestic violence restraining order with the Orange County Superior Court, pursuant to the Domestic Violence Prevention Act (“DVPA”), against Silvino M. for herself and their two minor children. Isidora M. claimed that she feared for her safety and that of her family because Silvino M. threatened to kill her. Silvino M. filed a response, stating that he did not agree with the order requested by Isidora M. The Orange County Superior Court ultimately issued a five-year mutual restraining order. Isidora M. then filed a timely notice of appeal with the Court of Appeal in Orange County insofar as the order enjoined her own conduct. Isidora M. contended that the Superior Court erred in making the restraining order mutual in the absence of an affirmative request by Silvino M. for such protection.
The Orange County Superior Court issued the mutual DVPA restraining order pursuant to California Family Code section 6305, although Silvino M. had not requested a restraining order against Isidora M. At the relevant time, former section 6305 provided: “The court may not issue a mutual order enjoining the parties from specific acts of abuse described in Section 6320 (a) unless both parties personally appear and each party presents written evidence of abuse or domestic violence and (b) the court makes detailed findings of fact indicating that both parties acted primarily as aggressors and that neither party acted primarily in self-defense.”
On appeal, the Court of Appeal in Orange County construed section 6305 in the context of the DVPA statutory scheme, and ultimately concluded that the Orange County Superior Court may issue a mutual restraining order under section 6305, with a duration of up to five years, only where both parties have filed requests for such relief, so as to give the requisite notice to the opposing party. The Court of Appeal in Orange County held that section 6305 could not be construed as authorizing the issuance of a mutual DVPA restraining order in a case in which only one party filed a request for a domestic violence restraining order. Thus, the Orange County Superior Court’s issuance of the mutual restraining order was reversed.
Isidora M. v. Silvino M. (2015) 239 Cal. App. 4th 11