Domestic violence charge in California: what does a criminal protective order mean for your home and children?

In a California domestic violence case, the criminal court can issue a protective order that keeps the accused person away from the home and the protected person, and can bar all contact except through an attorney (Penal Code § 136.2). The order also bars having firearms while it is in effect. A family court can still make custody and visitation orders, but they must refer to the criminal order and any contact with the children must be arranged so it does not violate it (§ 136.2(e)(3), (f)).

The protective order can be the first part of a domestic violence case a person feels. It can be issued at the first court date, before anything has been proved, and it can mean leaving home that day. This page explains what a criminal protective order is, how it interacts with custody and the family court, what happens if it is violated, and how long it can last. For the charges themselves and the probation terms, read the page on domestic violence charges in California.

How a criminal protective order works, step by step

1. The legal standard. A criminal court may issue protective orders on a good cause belief that harm to, or intimidation or dissuasion of, a victim or witness has occurred or is reasonably likely to occur (§ 136.2(a)(1)).
2. The court considers it on its own. When the charge involves domestic violence, the court must consider issuing these orders on its own motion, and the case file is marked to alert the court (§ 136.2(e)(1)). This can happen at the arraignment, described on the page about what happens between arrest and arraignment in Orange County.
3. What the order can say. Orders can include an order of the kind issued under Family Code § 6320, an order not to violate § 136.1 (intimidating a witness), and an order that the defendant have no communication whatsoever with the protected person except through an attorney under reasonable restrictions (§ 136.2(a)(1)). A child who was present during an act of domestic violence is treated as a witness (§ 136.2(a)(2)).
4. Firearms. A person subject to the order may not own, possess, buy or receive a firearm while it is in effect, and the court orders relinquishment of any firearms (§ 136.2(d)(1), (2)).
5. Which order wins. Once a domestic violence charge is filed, the criminal court's order has precedence in enforcement over a civil court order against the defendant, with exceptions for emergency protective orders and no-contact orders (§ 136.2(c), (e)(2)).
6. The family court. A family or juvenile court can order custody and visitation, but if it does so after a criminal protective order, its order must refer to the criminal order (§ 136.2(e)(3)). An order allowing contact with the children must provide for their safe exchange and may not violate a criminal no-contact order; the family court sets the time, day, place and manner of the exchange (§ 136.2(f)). In Orange County, family law and domestic violence matters are heard at the Lamoreaux Justice Center, 341 The City Drive South, Orange.
7. If the case ends in a conviction. Probation in a domestic violence case must include a criminal protective order, with residence exclusion or stay-away terms if appropriate (§ 1203.097(a)(2)). At sentencing, the court must consider an order restraining all contact with the victim, which may last up to 10 years (§ 136.2(i)(1)).

The home and the children

A residence exclusion or stay-away order means the restrained person cannot return home, even to collect belongings, unless the order or the court allows it. A no-contact order reaches texts, calls, social media and messages passed through relatives; the only permitted channel is through an attorney under reasonable restrictions (§ 136.2(a)(1)(D)). These orders are the court's, not the protected person's. A spouse who wants contact to resume cannot lift the order alone.

For parents, the key provision is § 136.2(f). The family court can coordinate with the criminal order: it can permit contact with the children if it provides for a safe exchange and does not contain language that violates a criminal no-contact order, and it must specify the time, day, place and manner of the transfer. The family court's own analysis follows Family Code § 3044, under which a finding of domestic violence within the past five years creates a rebuttable presumption against sole or joint custody for that parent; the page on how California courts decide custody and visitation explains that analysis.

What changes the answer?

• The charge. When the charge involves domestic violence, the court must consider the order on its own motion (§ 136.2(e)(1)), and the criminal order takes precedence over civil orders (§ 136.2(e)(2)).
• The stage of the case. Before trial, the order rests on good cause (§ 136.2(a)(1)); after a conviction, it becomes a probation term (§ 1203.097(a)(2)) and may last up to 10 years (§ 136.2(i)(1)).
• Threats and prior violence. A restraining-order violation involving threats to kill or harm, violence, or going to the protected person's home or work is on the list that requires a hearing in open court before own-recognizance release or a departure from the bail schedule (§ 1270.1(a)(4)).
• Injury or repeat violations. A violation causing physical injury brings at least 48 hours in jail; a repeat violation with violence or a credible threat within seven years can be a felony-level sentence (§ 166(c)(2), (4)).
• Firearms. Possession during the order is a separate offense (§ 166(d)(1)); family court protective orders also cover ammunition (Family Code § 6389(a)). The page on weapon and firearm charges explains longer bans after conviction.
• Later dismissal. A dismissal under § 1203.4 does not end an unexpired post-conviction protective order (§ 1203.4(a)(4)); see the page on clearing a record under Penal Code 1203.4.

A worked example

For example, picture a father in Irvine with two children, ages six and nine. This is a hypothetical, not a real case. After an argument, he is charged with misdemeanor domestic battery, and at the arraignment the judge issues a criminal protective order: he must stay away from the family home and may not contact his wife except through an attorney. His mother has just arrived from Tehran to stay with the family for the summer, and his passport and work laptop are still in the house.

He cannot go back to get them himself, and he cannot ask his mother to pass messages to his wife, because messages through relatives are contact. What he can do is ask his attorney to request a modification from the criminal court, or arrange retrieval in a way the order allows. For the children, his wife may file in family court at Lamoreaux. Any visitation order made after the criminal order must refer to it and provide a safe exchange that does not violate the no-contact order, with the time, day, place and manner set by the family court (§ 136.2(e)(3), (f)). If he planned to take the children to Iran for a visit, that question belongs to the family court and to the release terms in the criminal case; if he was released on his own recognizance, he has also promised not to leave California without permission (§ 1318(a)(3)).

His firearms, if he has any, must be relinquished as the order directs (§ 136.2(d)). A Persian-speaking attorney can explain each condition to him and his mother, while the details of the incident are discussed only with him. Readers who want to know who would handle a case like his can read about Sourena Sarbazevatan.

Common mistakes with criminal protective orders

• Accepting an invitation home. The protected person's consent does not change a court order.
• Sending messages through family. Contact through relatives or friends can be a violation.
• Assuming a family court order overrides it. The criminal order has precedence in enforcement over civil orders, with narrow exceptions (§ 136.2(e)(2)).
• Keeping a firearm. Possession during the order is a crime (§ 166(d)(1)).
• Ignoring the children's schedule. Exchanges must follow a family court order that respects the criminal order (§ 136.2(f)).
• Thinking a later dismissal ends it. An unexpired post-conviction order stays in effect (§ 1203.4(a)(4)).

What to do this week

1. Read the order and list exactly what it forbids: places, people, distance and types of contact.
2. Arrange somewhere to stay, and ask your attorney how to retrieve essentials without violating the order.
3. Relinquish or lawfully store any firearms as directed, and keep the receipt.
4. Tell family members not to carry messages.
5. If you have children, ask your attorney about a family court order that provides for safe exchanges.
6. Ask your attorney whether to request a modification from the criminal court.

The release side of the case, including bail and conditions, is explained on the page about how bail works in California.

Frequently asked questions

Can my spouse cancel the protective order?

No. It is the court's order. Only the court can modify or end it, so any change has to be requested from the court.

Can I see my children while the order is in effect?

Possibly, if a family court order permits it. Such an order must provide for a safe exchange and may not violate a criminal no-contact order, and it must set the time, day, place and manner of the exchange (§ 136.2(f)).

What happens if I violate the order?

A willful and knowing violation is contempt of court, a misdemeanor punishable by up to one year in county jail, a fine up to $1,000, or both (§ 166(c)(1)). Injury and repeat violations bring higher penalties (§ 166(c)(2), (4)).

How long does a criminal protective order last?

Before trial, while the case is pending under the court's order. After a conviction for a domestic violence crime, the court must consider a no-contact order at sentencing that may last up to 10 years (§ 136.2(i)(1)).

Do I have to give up my guns?

Yes, while the order is in effect. The court orders relinquishment, and possession during the order is punishable (§§ 136.2(d), 166(d)(1)).

Which order controls if there is also a family court order?

Once a domestic violence charge is filed, the criminal court's order has precedence in enforcement over a civil court order, except for emergency protective orders and no-contact orders as described in § 136.2(c) (§ 136.2(e)(2)).

The Law Office of Sourena Sarbazevatan represents people in Orange County and San Diego in domestic violence and protective order matters, in English and Persian (Farsi). Call (949) 591-9596 or use the contact page.