Mutual Restraining Orders: A New California Case Defines when They Can Be Ordered.
First, a short and simple definition; a “Mutual RO” is when in the same case, both sides file a request for a Restraining Order limiting or eliminating altogether contact from the other side. When granted, both sides are ordered to stay away from each other and/or restrict contact and communication as defined by the orders, and each order of course can have very different terms. But, basically both parties are subject to the terms of an order against the other person. That makes the orders mutual.
Typically, this happens when one side files a request for an RO, then the other side, who has to file an answer, also files their own cross-request for an RO–you say how can that happen? Well, either one side is not telling the truth, or it is in a domestic situation where you have a couple who are both abusive to each other. There is no other way this situation can arise in a court.
I do not think these cases are unique at all, and any family law attorney who has been around for a while will run into one sooner or later.
Procedurally, you would think it is obvious that an Answer should be filed in rersponse to every petition. This means in a Mutual RO case, each petition should have an answer also filed–to keep this clear, there should be two petitions, and two answers. But, the latest case from the a California Court of Appeal deals with a case where this procedural issue became very important.
The Court of Appeals recently clarified the procedural and substantive standards for the issuance of a mutual restraining order. It made the clarification applicable under the Domestic Violence Prevention Act (DVPA). In case of Isidora M. v. Silvino M., 190 Cal. Rptr. 3d 502 (7/31/2015), the wife, Isidora, filed a petition for a restraining order pursuant to the DVPA against her husband, Silvino. Silvino responded to the request for restraining order, stating that he did not agree to the order requested by Isidora, but he did not file a separate petition (request) for restraining order of his own against his wife. Silvino simply had attached what he considered the evidence that gthe Wife had been previously arrested for spousal physical abuse and had been subject to a criminal protective order (which issues if the law enforcement is called and shows up at the scene). After a full hearing, the trial court, sua sponte (meaning on its own motion and will), issued a five-year mutual restraining order under Family Code Section 6305. This meant that both sides were ordered restrained–and could be in violation if they did not follow the orders.
On appeal, the portion of the order that restrained Isidora was reversed, and the portion of the order that restrained Silvino was affirmed. The appellate court held that the trial court lacked the authority to issue a restraining order against Isidora without a request by Silvino for such relief filed with that court. Therefore, a trial court may issue a mutual domestic violence restraining order under the DVPA only if both parties have filed a separate request. The basis is the need to satisfy the constitutional due process requirements to provide proper notice to the other side and an opportunity to respond. Also, “he appellate court held that Family Code Section 6305 required the trial court to make detailed findings of fact against a restrained party. The trial court erred in substituting the bare fact of Isidora’s guilty plea to a charge of domestic violence for detailed findings of fact indicating that she acted primarily as an aggressor and not primarily in self-defense.
Above sounds simple, and it is. You cannot accuse someone without filing a formal and proper complaint, that has been served properly (provided adequate Notice) so they can respond. Also, the court has to find specific facts in its decision to agree or turn down such a request. This applies to both sides when they each file such a request against the other side.