Sometimes. In a California domestic violence restraining order case, the judge can order child support only if you and the petitioner are married and no child support order exists, or if a Family Code section 7611 presumption makes you the child’s presumed father and the child is in the petitioner’s custody. Spousal support is possible only between spouses when no spousal support order exists. Either kind requires notice and a hearing, and neither is automatic.

When child support can be ordered

Family Code section 6341(a) allows child support in the restraining order case in two situations (Family Code section 6341(a)):

  • you and the petitioner are married to each other and no other child support order exists; or
  • there is a presumption under Family Code section 7611 that you are the natural father of a minor child, and the child is in the petitioner’s custody.

If one of those applies, the petitioner asks for it, and there has been notice and a hearing, the judge may order a party to pay an amount necessary for the child’s support and maintenance, if that order would otherwise be authorized in a support case under the Family Code or a parentage case under the Uniform Parentage Act (Family Code section 6341(a)). If you are not married to the petitioner and no section 7611 presumption applies to you, for example if you dated the petitioner and no child is legally presumed to be yours, this provision does not allow the restraining order case to order you to pay child support.

When spousal support can be ordered

Spousal support is narrower. If you and the petitioner are married to each other and no spousal support order exists, the judge may, after notice and a hearing, order the respondent to pay spousal support in an amount, if any, that would otherwise be authorized under the Family Code’s support provisions (Family Code section 6341(c)). This section lets the court order only the respondent, not the petitioner, to pay spousal support. The Judicial Council’s request form states the same gate as being married or registered domestic partners (form DV-100, item 25).

How the judge decides

Both orders are discretionary. For either one, the court must consider whether not making the order may jeopardize the safety of the petitioner (and, for child support, the children), including safety concerns related to their financial needs (Family Code section 6341(a), (c)). So the question is not only what support law would allow, but whether going without support could make the petitioner or the children less safe.

How long it lasts, and how it relates to a later family case

A support order made in the restraining order case does not end when the restraining order does. If the court makes an order for support, that order survives the termination of any protective order (Family Code section 6340(a)(1)), and how long it lasts is governed by the law on support, not by the time limits for the personal conduct and stay-away orders (Family Code section 6345(b)).

It also does not bind a later case. A child support order under section 6341 is without prejudice in a parentage action under the Uniform Parentage Act, and a spousal support order is without prejudice in a divorce, nullity, or legal separation case between the parties (Family Code section 6341(b), (d)). That later case can decide support for itself.

What to do if support is requested

  • Check the request form you were served. On form DV-100, item 24 is child support and item 25 is spousal support. The response form, DV-120, lets you agree or disagree with each request, and for child support lets you agree to pay guideline support (items 21 and 22).
  • Check the gates: whether you are married to the petitioner, whether a section 7611 presumption applies to you, and whether a child or spousal support order already exists.
  • The instructions at the end of DV-120 require a financial statement whenever support is sought: form FL-150, Income and Expense Declaration, filed before the hearing, or the shorter FL-155 if only child support is at issue and you qualify.
  • Do not assume a support order will end when the restraining order does.

Next steps

A support request inside a restraining order case can catch a respondent off guard, especially since it rides along with allegations that are also being contested. To find out whether support can legally be ordered in your case, reach the Law Offices of David S. Chesley at (800) 755-5174.