Before the hearing on a California domestic violence restraining order, the court must make sure a records search is run on the person the order would restrain: certain criminal convictions, outstanding warrants, parole or probation status, firearms in the state’s firearms database, and prior restraining orders. What the search finds can shape the ruling, and a warrant, a firearm, or parole or probation status can lead to notices to law enforcement or a supervising officer. A temporary order can still be issued before the search is done.

What the search looks for

Before the hearing, the court must ensure a search is or has been done to find out whether you, as the person the order would restrain, have any of the following (Family Code section 6306(a)(1)):

  • a conviction for a violent felony listed in Penal Code section 667.5 or a serious felony listed in Penal Code section 1192.7;
  • a misdemeanor conviction involving domestic violence, weapons, or other violence;
  • an outstanding warrant;
  • current parole or probation;
  • a firearm you own or possess, as shown in the Department of Justice Automated Firearms System;
  • a prior restraining order, or a violation of one.

The search covers all records and databases readily available and reasonably accessible to the court, including the California Sex and Arson Registry, the Supervised Release File, the Department of Justice’s state summary criminal history, the FBI’s nationwide database, local criminal history records, and the Automated Firearms System (Family Code section 6306(a)(1)). If a court cannot reach the firearms system and has no arrangement for a law enforcement agency to check it, the sheriff must run that search at the court’s request and report the results (Family Code section 6306(a)(3)). Section 6306 governs domestic violence orders under the Family Code; civil harassment, workplace violence, and elder abuse orders have their own statutes.

What the judge considers, and what stays confidential

Before deciding whether to issue the order, and when setting temporary custody and visitation, the court must consider these search results: the listed felony and misdemeanor convictions, an outstanding warrant, parole or probation status, a prior restraining order, and a violation of one (Family Code section 6306(b)(1)). Other information the search turns up, such as an arrest that did not lead to one of the listed convictions, may not be considered in deciding whether to issue the order, and it must be destroyed rather than placed in the public file (Family Code section 6306(b)(2)). Firearm results are handled through the compliance record described below.

The information the court relied on is kept in a confidential case file, not the public file, although a court-appointed mediator or child custody evaluator in the case can see it (Family Code section 6306(d)).

After ruling, the court must tell both sides they may request the information it relied on, and it must release that information on request to the parties, or to either party’s lawyer in the case (Family Code section 6306(c)(1)-(2)). The court must also warn the person who asked for the order that willfully releasing the information is unlawful under Penal Code sections 11142 and 13303, except as authorized by law (Family Code section 6306(c)(1)). That person may share it only in limited ways, such as with their lawyer, court staff, or court-appointed mediators to seek review of the order (Family Code section 6306(c)(3)). In practice, you do not have to guess what the court saw about you: you can ask for it.

If the search finds a warrant, a firearm, or supervision

The statute tells the court what to do with three kinds of results:

  • An outstanding warrant. The court must have the clerk immediately notify law enforcement of the protective order and of any other search information the court considers appropriate. Officers must then take the actions needed to execute the warrant, or other appropriate action, as soon as practicable (Family Code section 6306(e)). A warrant unrelated to the restraining order case can still lead to an arrest.
  • A firearm or ammunition. If the search shows you own or possess a firearm, or the court receives other evidence that you possess a firearm or ammunition, the judge must make a written record of whether you have relinquished it and provided proof of the required storage, sale, or relinquishment. If that proof is not provided, the court must have the clerk notify law enforcement, which must take the actions needed to obtain those and any other firearms or ammunition you own, possess, or control (Family Code section 6306(f)).
  • Parole or probation. If you are currently on parole or probation, the court must have the clerk notify your parole or probation officer of the order. That officer must take the actions needed to revoke parole or probation, or other actions, as appropriate and as soon as practicable (Family Code section 6306(g)).

Timing: the search does not hold up a temporary order

If the sworn statement filed with the petition is enough to grant a temporary order, the court issues it without waiting for the search and then makes sure the search is done before the hearing (Family Code section 6306(h)). Apart from the firearm check, the Legislature tied full implementation of this section to courts the Judicial Council identifies as having the resources, and to budget funding for other courts (Family Code section 6306(i)), so how thorough the rest of the search is can vary by court.

What this means for you

  • If you have an open warrant, a firearm, or active parole or probation, expect those facts to reach the court, and plan for them before the hearing.
  • After the ruling, ask for the information the court relied on instead of guessing what it saw.
  • If you own or possess a firearm or ammunition, be ready to show proof of the storage, sale, or relinquishment the order requires. Do not hide a firearm or hand it to someone else to keep it off the record; the statute directs law enforcement to obtain firearms you own, possess, or control and to address firearm violations of the order (Family Code section 6306(f)).

Next steps

What the court’s search turns up can be in front of the judge before you say anything at the hearing. For help sorting out what a warrant, firearm, or parole or probation issue could mean at your hearing, contact the Law Offices of David S. Chesley at (800) 755-5174.