Domestic Violence and DVRO
How a Domestic Violence Finding Follows You
A domestic violence restraining order is rarely the end of the story. It is the beginning of three others — in three different courts that do not talk to each other.
Custody
Under Family Code section 3044, a finding that a parent committed domestic violence against the other parent, the child, or the child’s sibling within the previous five years creates a rebuttable presumption that giving that parent sole or joint physical or legal custody is not in the child’s best interest. The presumption can be overcome, but only by addressing a specific list of statutory factors on the record — and most parents do not learn that list exists until it is too late to build toward it.
That is why a restraining order hearing is, in practice, often the custody trial. The findings made there are the ones the custody judge starts from.
Criminal exposure
The same conduct that supports a restraining order can support criminal charges under Penal Code section 273.5 or section 243(e)(1). Violating a restraining order is itself a crime under section 273.6, and the violation does not have to involve violence — a text message can be enough. Testimony given in a civil hearing does not stay in that hearing, and a stipulation entered without thinking can read very differently when a prosecutor reads it.
Immigration
For a non-citizen this is often the most serious consequence of all. A conviction for a crime of domestic violence, stalking, or child abuse, and a judicial finding that a person violated the portion of a protective order intended to prevent violence, are grounds of deportability under INA section 237(a)(2)(E). A domestic violence matter can also derail a naturalization application on good moral character grounds, and can affect eligibility for adjustment of status and for cancellation of removal.
On the other side of the same case, survivors may be eligible for a U visa or a VAWA self-petition. The same set of facts can be the basis for removal for one party and the basis for lawful status for the other. Which one it becomes depends heavily on how the case is handled at the start.
Why one firm
These three consequences are decided by three different courts on three different timelines. Handling them separately — a family lawyer here, a criminal lawyer there, an immigration lawyer later — is how people lose. We handle the family law case, the criminal case, and the immigration case together, in one office, so that a strategy that works in one courtroom is not a disaster in another.
Family court
Restraining orders, custody, visitation, support, and the section 3044 presumption.
Criminal court
Defense of domestic violence charges, protective orders, and post-conviction relief.
Immigration
Removal defense, waivers, naturalization, U visas, and VAWA self-petitions.
Common questions
How does a restraining order affect child custody?
Family Code section 3044 creates a rebuttable presumption that awarding custody to a person the court has found perpetrated domestic violence within the previous five years is detrimental to the child. That presumption is often what makes the restraining order hearing the hearing that decides custody.
Will I lose my firearms?
A restrained person must relinquish firearms within 24 hours of being served and file the receipt with the court within 48 hours. A qualifying order also triggers a federal prohibition on possessing firearms or ammunition while it is in effect.
Can a restraining order affect my immigration status?
The civil order by itself is not a ground of removal, but a court finding that you violated its protective provisions is, and a related criminal conviction can be a deportable crime of domestic violence. The immigration analysis should happen before you agree to anything.
Will a restraining order show up on a background check?
The order is entered into CLETS, the statewide law enforcement database, and court records are public. Employers, licensing boards and landlords may find it.
How long do the consequences last?
An order after hearing can run up to five years and can be renewed for another five years or permanently. The custody presumption reaches back five years from the finding, and immigration consequences can last far longer than the order itself.
Get advice before the hearing, not after
The earlier we are involved, the more of these consequences can still be shaped.
Call (415) 776-1633Contact UsThis page describes how California law generally works. It is not advice about your situation — we would need the facts for that, and the facts are what decide these cases. Reading this page does not make us your lawyers, so please hold back the confidential details until we have agreed to represent you. Once we have, tell us everything. Full Legal Notice.