Do I Need All That Protection? Intersection Between the Penal and Family Codes

The Difference

A common conundrum among parties to a family law dispute is whether they need to file an application for a Domestic Violence Restraining Order (DVRO) if they have already received a Criminal Protective Order (CPO). The answer depends on what protection you need.

A CPO is an order that is issued by the criminal courts, usually following allegations of a crime of violence against the person – not just domestic violence. It is the most restrictive restraining order issued by the courts and is an enforceable order. As opposed to an oral “stay away order,” it is authorized by the California Penal Code and issued upon request by a victim or the prosecuting agency. If the CPO is issued pending trial or plea, there is no termination date and it remains in effect unless the court makes an affirmative finding that it is terminated. If the CPO is issued upon conviction, the order will state on its face the expiration date — which could be up to ten years (Pen. Code § 136.2(i)). A CPO covers more general issues (no contact, stay away, etc.) whereas a DVRO can provide orders for  issues specific to family court – for example, a DVRO provides protection with respect to debts, custody, and property, which are commonly requested and not expressly covered in a CPO.

A DVRO is issued following a hearing or sometimes a stipulation between the parties. This is also an enforceable order.  In granting a DVRO after hearing, the court can only issue protection for up to five years. However, a party can request to renew their DVRO at any time within three months before the expiration of their order; if renewed, the judge would extend the DVRO at least five years, and can even make it permanent (one that never expires without further court order). Family Code § 6345(a) was amended effective January 1, 2024 to give the court discretion to extend a renewal for any length of time beyond five years. Many people attempt to get creative and stipulate to a “no-HAM” family court order (meaning an order not to abuse by harassing, annoying or molesting) similar to a DVRO.  These “no-HAM” orders are an attempt to get the benefits of a restraining order without entering the order in CLETS – the California Law Enforcement Telecommunications System.  However, the law expressly prohibits the court from signing such orders.

Consequences in Real Time

As indicated above, a CPO is issued by the criminal court, so it is not automatically part of the family law court file, unless a party makes such request and/or attaches it to their pleading, or enters it as an exhibit. A DVRO is an order made by the family court. As such, when a court issues a DVRO, it is thereby making a finding that one party perpetrated domestic violence. This is critical when child custody and visitation are at issue in the case because it triggers a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child. (Fam. Code § 3044.) However, it is a rebuttable presumption, and the code expressly states what the court may consider in determining whether the presumption has been rebutted.

Particular to relationships involving parents, easily overlooked is the section on the CPO that provides for an exception to the restrictions – adherence to the family, juvenile or probate court’s orders for the safe exchange of children and court-ordered visitation. If such an order already exists, then it can be incorporated by reference, or the court may check the box that incorporates any order issued after the date the CPO is signed. There is no justifiable excuse to violate a CPO, so it is absolutely critical to review the order before leaving court to ensure one of the two boxes is checked, otherwise you will have to bring a motion to modify the CPO.

If the criminal court issues a CPO for a crime of domestic violence, that can be used as a basis for the family court to make a finding of domestic violence, but the proper steps must be taken. It would be prudent to advise a client to seek family law counsel to do so.

Can You Record the Restrained Party?

This question has become increasingly prevalent as we grow as a more technologically advanced society because everything is recorded. Fight at school? Already distributed on the socials. Home security? Camera in every room, at every angle. Isn’t California a dual consent state? What that means is both parties to a conversation that either party expects to be confidential must know and consent to being recorded during the conversation.

So, what does confidential mean? Look at the circumstances surrounding the conversation: does either party have a reasonable expectation that the conversation could be overheard or recorded? Are they in public?

What is consent? Look at the express words of the parties, or if no direct words are spoken, then examine their conduct and behavior after learning that the other party was recording. Did they keep talking?

Does the restraining order allow the protected party to record an otherwise confidential conversation? Is the recording being made to preserve evidence of the abuse for which the protected party is seeking protection? Is the recording being made to document a crime expressly enumerated in Penal Code 633.5? These are all exceptions to the otherwise required dual consent. If no exception exists, then a secretly recorded conversation may violate the Penal Code or may have limited use as evidence in a legal proceeding.

Novel Issue: What About Collateral Estoppel/Res Judicata, between the CPO and DVRO?

Collateral Estoppel/Res Judicata, or “issue preclusion,” prevents the same issue from being litigated multiple times. Specifically, where a jury finds that the defendant committed specific domestic violence acts, can that issue be relitigated in family court in the context of DVRO proceedings? While there is a long-established rule that denies preclusion in a civil proceeding for a prior acquittal in a criminal proceeding, there appears to be no clear-cut answer to this question, and not much case law on the issue – pun intended.

Collateral estoppel should apply (i) after there is a final adjudication, (ii) of an identical issue, (iii) actually litigated and necessarily decided in the first suit, and (iv) asserted against the same party (or someone in privity with that party). It will apply even if, in the second suit, there is a different cause of action raised. Once determined that all four elements are satisfied, the court must then determine whether it would be contrary to the public policy of the doctrine to apply same.

Suppose you have a situation where a jury has found a defendant guilty of domestic violence. The victim then requests a DVRO as well. Should the family court allow DVRO litigation to proceed?

Assuming all four elements of collateral estoppel are satisfied, which they often would be, there are a variety of reasons why a party would want to raise this issue, and why a family court would allow it – a desire not to be stuck in unnecessary litigation, waste time, or incur potentially exorbitant costs and attorney’s fees (on both sides). However, as previously discussed, a DVRO can include terms that a CPO cannot, such as payment of debts and child custody. Thus, while the issue of a past act of abuse may be dispositive in many cases by a conviction for domestic violence, it does not determine all issues before a judge presiding over a DVRO matter.

Lastly, but certainly not least, regardless of whether a party obtains a CPO, DVRO, or both, one fact remains true regardless of the order (or orders) in place: they are enforceable, and any violation of such orders can result in criminal charges and jail time. The DVRO forms have had a lot of updates over recent years; read the fine print so you can carefully advise your clients!