It often starts on an ordinary evening. An argument with your spouse escalates, someone calls the police, and by the end of the night, you are in handcuffs. Before you leave, a police officer hands you a piece of paper: an Emergency Protective Order (EPO) that bars you from going home or contacting your spouse. You bail out the next morning to an empty hotel room.
Then, just as that emergency order is about to expire, you are served again—this time with a Domestic Violence Restraining Order (DVRO) that keeps you out of your house and away from your spouse and children until a family court hearing three weeks away.
You now have two cases:
- The Criminal Case: Brought by the government.
- The DVRO: A civil matter in family court.
They arise from the same evening, run on different tracks, and each can be used to destroy the other if handled in isolation. This article explains how the two cases differ, how each affects the other, and why they must be fought as a single, coordinated defense.
DVROs And Criminal Cases: The Short Answer
A domestic violence incident can produce two entirely separate legal proceedings:
- The Criminal Case: The government prosecuting you for a crime, where the stakes are jail, probation, a criminal record, and serious immigration and employment consequences.
- The Restraining Order Case: A civil matter in family court, where the accuser seeks a protective order, and where the stakes include child custody, financial orders, and firearm rights.
The two cases are governed by different rules, decided under different standards of proof, and controlled by different entities. They are dangerously connected: what you do in one can decide the other. A plea in the criminal case can hand away the restraining order; testimony in the restraining order hearing can be used against you in the criminal case.
The Emergency Protective Order (EPO)
Before either main case begins, there is usually the Emergency Protective Order (EPO). When police respond to a domestic violence call, an officer can call a judge at any hour to request an EPO on the spot.
The judge can issue it immediately, ordering the accused to leave the home and stay away. An EPO lasts only 5 to 7 days, giving the alleged victim time to file for a full restraining order. The DVRO can be filed before the EPO lapses, ensuring the restrictions never lift while the criminal case takes shape.
Two Different Cases: Criminal Case vs. DVRO
The grid below lays out the key differences and strategic consequences of both proceedings:
| Feature | Criminal Case | Domestic Violence Restraining Order (DVRO) |
|---|---|---|
| Who Brings It | The government (District Attorney) | The alleged victim (Petitioner) |
| Who Controls It | The prosecutor (alleged victim cannot "drop" it) | The petitioner (can ask to dismiss it) |
| How It Starts | Police arrest; DA decides charges | Petitioner files a request; judge issues temporary order |
| Standard Of Proof | Beyond a reasonable doubt | Preponderance of the evidence (more likely than not) |
| What Is At Stake | Jail/prison, probation, criminal record, fines | Protective order, custody, support, firearms rights |
| Immigration & Job Impact | Severe; conviction can trigger removal/bar relief | Real, but generally less severe than a conviction |
| Custody & Support | Not decided here | Decided or heavily influenced here (§ 3044 presumption) |
| Core Objective | Punishes the offender | Protects the victim |
Key Takeaways From the Differences:
- The alleged victim controls the DVRO, but NOT the criminal case: Many believe that if a spouse "drops the charges," the criminal case goes away. That is a myth. The prosecutor can and often does proceed regardless of the alleged victim's wishes
- The restraining order determines custody and finances: While a criminal case threatens liberty, the DVRO sets child custody and financial terms. A domestic violence finding triggers the Family Code section 3044 presumption against
How Each Case Can Affect The Other
The two cases are connected by the rules of evidence, meaning a move in one can become a weapon in the other.
- A Criminal Plea Can Hand Away The Restraining Order
The criminal case uses the highest standard of proof (beyond a reasonable doubt), while the DVRO uses a much lower standard (preponderance of the evidence). Pleading guilty or no contest in criminal court—even to a minor offense—establishes abuse under the higher standard. Through collateral estoppel, that resolution can be used to automatically establish abuse in the DVRO case.
Rule: Never resolve a criminal domestic violence case without accounting for its effect on the restraining order.
- A Contested DVRO Hearing Can Damage The Criminal Case
If you testify under oath at a DVRO hearing to defend yourself, every word is recorded. The prosecution can use that sworn testimony directly against you in your criminal trial.
- The Fifth Amendment Dilemma
When your DVRO trial comes before the criminal case resolution, you face a dilemma:
- If you testify at the DVRO hearing: You waive your Fifth Amendment privilege, handing the prosecutor sworn testimony.
- If you invoke the Fifth Amendment and stay silent: The family court judge is permitted to draw an adverse inference against you in the civil proceeding, which can cost you the restraining order and custody.
Navigating this timing and sequence is the core of a coordinated defense.
The One Exception: When You Should NOT File Your Own DVRO
In our article on mutual restraining orders, we explain that a respondent who was genuinely abused is almost always better off filing their own DVRO to reframe the case [INTERNAL LINK: mutual restraining orders]. However, pending criminal charges create an exception to that rule.
When you have pending or potential criminal exposure, filing your own DVRO requires submitting a sworn, written declaration under penalty of perjury. Handing the prosecution your detailed written story before seeing police body camera footage or witness statements can be self-destructive. When a criminal case is pending, the decision to file a cross-DVRO usually requires waiting.
Case Spotlight: Strategic Sequencing at Vijay Law
A mother on an H-1B visa was arrested following a domestic violence allegation. She faced potential criminal charges and a pending DVRO, placing her immigration status and custody of her five-year-old child in immediate jeopardy.
- Preserving Options: At the scene, she refrained from giving a statement to police, keeping her options open.
- Holding Back on the DVRO: Rather than filing a cross-DVRO immediately (which would have exposed her to sworn statements), we delayed the family court filing.
- Addressing Criminal Exposure First: We built a mitigation package and presented it to the District Attorney, persuading them not to file criminal charges [INTERNAL LINK: preventing DV charges].
- Filing the Cross-DVRO: With criminal exposure eliminated, we filed her DVRO request, obtained a temporary order, and prevailed at trial.
Had we filed the DVRO first, her sworn statements could have been weaponized by the prosecutor. Resolving the criminal exposure first allowed her to emerge with no criminal record and a protective order in her favor.
Why Both Cases Should Be Coordinated by One Legal Team
A criminal defense lawyer acting alone might recommend a quick plea that unknowingly ruins a client's custody rights in family court. A family lawyer acting alone might rush a client onto the witness stand and destroy their criminal defense.
Because these proceedings interact constantly through evidence and timing, having one attorney or legal team coordinate both ensures that decisions—when to stay silent, when to file, and which case to resolve first—are executed with total alignment.
Frequently Asked Questions About DVROs & Criminal Cases
If my spouse drops the restraining order, does the criminal case go away?
No. The petitioner controls the restraining order, but the District Attorney controls the criminal case and can prosecute regardless of the alleged victim's wishes.
Should I file my own restraining order if I was also abused?
Usually yes, unless you face pending or potential criminal charges. In that case, your DVRO declaration can be used against you by the prosecutor, so timing must be carefully evaluated.
Can what I say in the restraining order hearing be used in the criminal case?
Yes. Testimony at a DVRO hearing is under oath and on the record, making it admissible in your criminal case.
Will pleading guilty to a minor charge end everything?
It may end the criminal case, but it can cost you the restraining order and custody. A plea establishes abuse under a higher standard of proof, which can be used against you in family court.
Do I need two different lawyers for both cases?
Not necessarily. Having one attorney or coordinated team handle both cases often produces better strategic alignment than two isolated lawyers.
This article provides general information and is not legal advice. The interaction between criminal and restraining order cases is complex and fact-specific. If you are facing both, consult an attorney promptly.