In a Riverside County domestic violence case, the criminal charge is rarely the only legal proceeding the defendant is facing. Within days of an arrest, a parallel civil case typically opens in family court — a restraining order proceeding that runs alongside, and sometimes ahead of, the criminal case. The two cases use different burdens of proof, follow different rules, and can produce very different evidentiary records. Defendants who treat them as a single problem often make decisions in one that hurt them in the other. This post walks through how the parallel proceedings work and what defense counsel does to navigate both.
The First Three Days: The Emergency Protective Order
When law enforcement responds to a domestic violence call and an arrest is made, the responding officer can request an emergency protective order (EPO) on the spot. A judge — typically reached by phone, available 24 hours a day for this purpose — can issue the EPO immediately. The EPO orders the alleged perpetrator to have no contact with the protected person and often to stay away from a shared residence.
The EPO is short-term by design. It expires after five court days or seven calendar days, whichever is sooner. Its purpose is to bridge the gap between the arrest and whatever the next legal step is — bail, arraignment, and, in many cases, a civil restraining order proceeding initiated by the alleged victim.
From EPO to Domestic Violence Restraining Order
Once the EPO is about to expire, the alleged victim typically petitions family court — not criminal court — for a Domestic Violence Restraining Order (DVRO). The process begins with a Request for Order under the Domestic Violence Prevention Act, supported by a declaration describing the conduct. A judge reviews the request and, if the showing is sufficient, issues a Temporary Restraining Order (TRO) that lasts until a noticed hearing.
The TRO is then served on the alleged perpetrator. The order typically prohibits contact with the protected person, requires the respondent to stay a specified distance away, and may include orders about a shared residence, children, or firearms. A court date — usually within twenty-one days — is set to decide whether the TRO should be extended into a permanent restraining order, which can last up to five years in California.
This is the key procedural fact most defendants do not realize until it is too late: the family law restraining order proceeding is its own case, with its own deadlines, its own evidentiary rules, and its own consequences — all running in parallel with the criminal case. For more on the restraining order side specifically, see the practice area page on DV restraining orders.
Different Burden, Different Rules
The criminal case requires proof beyond a reasonable doubt — the highest burden in American law. The family court restraining order proceeding requires only a preponderance of the evidence, which means simply that the alleged conduct is more likely than not to have occurred. The same set of facts can lose in criminal court and win in family court, and the same testimony can be ruled inadmissible in criminal court while being freely considered in family court.
This burden gap matters in two directions. First, a permanent restraining order issued in family court does not require the prosecution to have proven anything in the criminal case. Second — and more critically for the defense — statements made by the respondent in the restraining order proceeding can be used against the defendant in the criminal case. A declaration filed in family court, a statement made at the restraining order hearing, or even discovery answers given in the civil proceeding can become evidence in the parallel criminal case.
The Strategic Tension: Silence vs. Being Heard
Every criminal defendant has a constitutional right to remain silent. Statements made — whether to police, at a deposition, at a civil hearing, or in a declaration — can be used by the prosecution. The Fifth Amendment protects the defendant from being compelled to testify against themselves in a criminal proceeding.
The family court restraining order proceeding is not a criminal case, and the Fifth Amendment does not bar testimony there. But the same words spoken in family court can be subpoenaed and introduced in the parallel criminal case. This creates the central tension of these dual proceedings: a respondent who stays silent in the family court hearing risks a permanent restraining order being issued by default; a respondent who speaks freely creates evidence the prosecution will use against them.
Defense counsel — particularly counsel experienced in both criminal defense and restraining order work — manages this tension carefully. The defense decides what can safely be said, what should be reserved, how to invoke the Fifth Amendment selectively when needed, and how to present documentary evidence and third-party testimony that does not require the defendant’s own statements. The goal is to defend the criminal case while preserving the right to be heard in the civil proceeding, without letting either case poison the other.
What Defense Work Looks Like in the Civil Proceeding
Defense work in the restraining order proceeding usually includes a careful written response to the petition, third-party witness statements and declarations, photographic and documentary evidence (text messages, call logs, social media that contradicts the petition’s account), strategic cross-examination of the petitioner at the noticed hearing, and arguments about the legal standard required under the Domestic Violence Prevention Act. Throughout, the defense considers how every choice affects the parallel criminal case.
The outcome of the restraining order hearing has its own consequences beyond the criminal case: a permanent restraining order can require the respondent to surrender firearms, can affect child custody under Family Code 3044, can affect housing if the respondent shares a residence with the protected person, and can affect immigration status. None of these are theoretical — they happen routinely and with little warning to respondents who showed up to family court unrepresented.
Common Questions
Can the alleged victim drop the criminal case?
No. Once law enforcement has been involved, the decision to prosecute belongs to the District Attorney’s office, not the alleged victim. A victim who tells law enforcement what happened cannot later “drop the charges” the way the popular imagination suggests. The prosecutor decides whether to pursue, reduce, or dismiss the case based on the evidence, not the victim’s preferences.
What happens if the respondent doesn’t show up to the restraining order hearing?
The court will typically issue a permanent restraining order by default, often for the maximum term requested by the petitioner. The order can include firearm surrender, residence orders, and custody provisions. Default orders are very difficult to modify after the fact. Showing up — represented — is critical.
Can the same lawyer handle both the criminal case and the restraining order?
Yes, and there are strategic advantages to having a single defense attorney coordinating both proceedings. The lawyer can decide what evidence and arguments to deploy in which forum, can ensure that statements made in one case do not undermine the other, and can negotiate resolutions that contemplate both proceedings at once. Some defendants hire separate criminal and family law counsel and coordinate between them; either model can work, but the coordination is essential.
If the criminal case is dismissed, does the restraining order go away?
Not automatically. A restraining order issued in family court is its own order, based on a separate proceeding with a lower burden of proof. A criminal case dismissal can be cited as evidence in a motion to dissolve or modify the restraining order, but the order does not vanish on its own. A separate motion in family court is typically required.
Domestic violence cases in Riverside County are rarely just one case. The criminal charge and the parallel restraining order proceeding require coordinated defense from the first hours after an arrest. Joseph W. Galasso has defended domestic violence cases and parallel restraining order proceedings in Riverside County for more than 20 years. To discuss a specific situation, schedule a free case evaluation or call (951) 225-4130.
