Everything you need to know about Domestic Violence and Family Law. A 6-part series.


Part 3: Mutual toxicity: what happens when we’re both in the wrong?

Welcome back to our series on the California Domestic Violence Prevention Act (“DVPA”). So far we have covered (1) a 50,000-foot view of things to know about the DVPA if you want to request a restraining order (2) the critical details to be aware of if a restraining order is filed against you. In today’s post, our third installment, we will discuss the topic of “mutual restraining orders.”

California Family Code Section 6305 states:

(a) The court shall not issue a mutual order…unless both of the following apply:

  1. Both parties personally appear and each party presents written evidence of abuse or domestic violence in an application for relief…
  2. The court makes detailed findings of fact indicating that both parties acted as a primary aggressor and that neither party acted primarily in self-defense.

(b) For purposes of subdivision (a), in determining if both parties acted primarily as aggressors, the court shall consider the provisions concerning dominant aggressors set forth in paragraph (3) of subdivision (c) of Section 836 of the Penal Code.1

So what exactly is a “mutual restraining order”?

As you may have guessed from the name, this is a scenario where two people have filed competing restraining orders against each other. Here is how it will play out in the courtroom:

Person A files a request for a restraining order against Person B. While the case is still pending, B files a restraining order request against A. The trial will hear evidence on both requests at the same time.

If both parties are able to prove their case, then the judge will issue restraining orders that protect both parties from each other. A cannot contact B, and B cannot contact A. (Please note how this differs from the conduct restrictions described in part 2 of this series)

1California Family Code Section 6305

As you can see from the code above, if you are Person B in the above scenario and have had a restraining order filed against you—and you want the court to grant a restraining order against Person A—then you must submit your own request for a restraining order. If you do not have an active request on the proper form submitted with the court, then you cannot ask the court to grant a restraining order in your favor.

“Notice and opportunity to be heard”

California courts and the legislature hold the position that without a filed request, the other party does not have proper notice. In order to protect everyone’s legal rights, people must have notice of what is before the judge. If you were to observe a family law court room, you may hear the judge or an attorney reference this by saying, “the Responding party had notice and the opportunity to be heard.”

Think about it this way, would you feel it was fair or just if the court made an order against you that you didn’t know was possible for the court to make? Most likely not.

It is for that reason that California requires any competing requests to be filed and heard together: both parties have notice of what the other is requesting, and have the opportunity to be heard in defending themselves against the other’s allegations.

Important: You cannot settle your case by agreeing to mutual restraining orders unless both parties have filed the proper documents with court. Parties have tried to resolve cases this way, but with no luck. If both parties have not filed a request for a domestic violence restraining order but you attempt to agree to mutual restraining orders, then the judge will be forced to deny the restraining order protecting the party who did not file a corresponding request. If the judge does grant a restraining order without a properly filed and served request, this is a legal error.

I filed my competing request, what next?

We advise you to speak with an attorney for guidance. If you’re filing your own request, submitting a response to the request against you is still important, but will generally consist of different information.

Keep in mind that judges frequently have a burdensome caseload. In 2018 alone, California Superior Courts had 375,5292 family law filings. To ensure you do not submit duplicative pleadings and unintentionally frustrate your judge, it helps to have an experienced attorney guide you.

2Statistics from: The Court Statistics Report (CSR) is published annually by the Judicial Council of California. The CSR combines 10-year statewide summaries of Superior Court filings and dispositions with similar workload indicators for the California Supreme Court and Courts of Appeal. The appendixes to this report provide detailed information on filings and dispositions in the Superior Courts for the most recent fiscal year, 2016–2017.https://www.courts.ca.gov/documents/2018-Court-Statistics-Report-Introduction.pdf

Court procedures for mutual restraining orders
The court procedure will be the same as what was described in Part 1 and 2 of our DVPA series. You must both ensure you’ve given proper notice, and appeared at your court hearings.

At the first hearing, the judge will ask about how you would like to proceed. The judge can give additional time for finding legal counsel or getting witnesses together. Your judge will also ask questions necessary to determine how long you need to present your case.

If you believe that you will take half an hour or less, the judge may be willing to hear your evidence that day. If you believe you will require more than 20 minutes, or if your witnesses are not available that day, the judge will give you a trial date with sufficient time for both sides to prepare.

What can I expect at trial? What is our judge looking for?

At the trial, your judge is looking for specific things: credibility and evidence.

  • Credibility is defined as the quality of being trustworthy and believable. Does the judge find you trustworthy, and believe your description of the events?
  • Are you presenting evidence (testimony, photos, writings, etc.) that establishes for the court that domestic violence did occur?
  • Are you presenting evidence that you have an ongoing fear of this person? Plus, evidence supporting the position that without a restraining order future domestic violence is likely to occur?

In every single evidentiary hearing, the judge is evaluating the credibility of the witnesses. Judges understand that testifying can be stressful and emotional. Judges are evaluating not only the words of witnesses, but body language, tone, and all forms of verbal and nonverbal cues that indicate whether someone is telling the truth, exaggerating, or completely fabricating their testimony.

As we’ve discussed previously, the judge must make specific evidentiary findings in order to grant a restraining order. The court must find that there is reasonable proof of a past act or acts of abuse. As a reminder, abuse:

“includes intentionally or recklessly causing or attempting to cause bodily injury, placing a person in reasonable apprehension of imminent serious bodily injury… molesting, attacking, striking, stalking, threatening, sexually assaulting, [and] battering . . . harassing, telephoning . . . contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party.” 3

When the court evaluates evidence presented during a trial for competing restraining orders, the court must still evaluate if past acts of abuse have occured; that requirement stays the same. What changes with a mutual restraining order is the court must determine who is the primary aggressor.

Using the example from above, the court must evaluate the evidence presented by both Person A and Person B. During the evaluation, the court must make a finding of who instigated the conflict. In order for the court to issue mutual restraining orders, the court must find that both parties have been primary aggressors and that neither party acted primarily in self-defense. If the court finds that either party only engaged by acting in self-defense, then the court cannot issue mutual restraining orders.

What are the possible outcomes of a request for mutual restraining orders?

To summarize the last paragraph, when presented with a request for mutual restraining orders, the court may make the following order:

  1. Deny the request of both parties.
  2. Deny one request and grant the other.
  3. Grant both requests

Successfully pursuing a request for mutual restraining orders is complicated and requires fine attention to detail. We strongly encourage you to work with an attorney as you navigate this legal process. If you have questions about your own case and if a mutual restraining order is right for your specific situation, do not hesitate to give us a call to set up a consultation.

3In Re Marriage of F.M & M.M (2021) No. A160669, 2021 WL 2254004 (Cal. Ct. App. May 28, 2021). Cal.Fam.Code § 6211, subds. (a) & (e).) Cal.Fam.Code 6320, 6203.


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