Restraining Order Hearing With a Pending Criminal Case in California: Fifth Amendment Rights and Strategy

Quick answer: A California restraining order case and a criminal case can proceed at the same time over the same incident, in different courts, under different standards of proof. Nothing automatically pauses the restraining order hearing. Anything the respondent says in that hearing, or signs in a written response, is a sworn statement that the prosecution can use. The respondent keeps the Fifth Amendment privilege in the civil hearing and may decline to answer incriminating questions, and California Evidence Code § 913 bars the judge from drawing an inference from a valid claim of privilege. The main strategic choices are (1) continue or stay the restraining order hearing until the criminal case resolves, (2) contest the hearing through cross-examination and other evidence without the respondent testifying, or (3) testify, after a careful assessment of the criminal exposure. Which choice is right depends on the strength of each case and should be made with a lawyer who is handling, or closely coordinating, both.

Key Takeaways

• Two cases, two courts: the restraining order is civil (family or civil court), and the prosecution is criminal.
• Different standards: preponderance of the evidence for a domestic violence restraining order, clear and convincing evidence for civil harassment, and beyond a reasonable doubt for a criminal conviction.
• Sworn statements travel. Declarations and hearing testimony in the civil case are available to the prosecutor.
• The Fifth Amendment applies in the civil hearing, but silence leaves the petitioner’s account unanswered by you.
• A respondent is generally entitled to one continuance, and more are discretionary.
• A criminal protective order generally overrides a conflicting civil order.
• The civil hearing is also an opportunity: the accuser testifies under oath and can be cross-examined before any criminal trial.

How One Incident Becomes Two (or Three) Cases

A typical sequence looks like this. Police respond to a call and make an arrest for Penal Code § 273.5 or § 243(e)(1). The officer obtains an emergency protective order. Within days, the other party files a request for a domestic violence restraining order and receives a temporary order with a hearing about three weeks out. Meanwhile, the prosecutor reviews the police report and may file charges. At arraignment, the criminal court issues its own criminal protective order.

The same overlap occurs with civil harassment orders and charges such as stalking, criminal threats, or harassing communications, and with elder abuse and workplace violence petitions.

The Core Problem: Your Words in the Civil Case Are Evidence in the Criminal Case

In a criminal case the defendant cannot be made to testify and the prosecutor cannot comment on that silence. The restraining order process pulls in the opposite direction. The response form asks the respondent to explain, under penalty of perjury, why the request should be denied. At the hearing, the judge expects to hear from both sides, and the petitioner’s lawyer may call the respondent as a witness.

Statements made in either setting are admissible against the respondent in the criminal case as party admissions. A partial explanation (“I only grabbed her wrist”) can supply an element the prosecutor could not otherwise prove. An inconsistency between the declaration and later testimony can be used for impeachment. Prosecutors and investigators do review restraining order files, and before a domestic violence hearing the court itself runs a criminal history search on the respondent (Fam. Code § 6306).

Fifth Amendment Rights in a Restraining Order Hearing

The privilege against self-incrimination is not limited to criminal courtrooms. Under the Fifth Amendment, article I, section 15 of the California Constitution, and Evidence Code § 940, a witness in any proceeding may refuse to give an answer that could tend to incriminate the witness. In a civil restraining order hearing, these rules apply:

• It is claimed question by question. A respondent in a civil case can be called to the stand. The privilege is then asserted in response to specific questions, and the judge decides whether an answer could be incriminating.
• No inference may be drawn. Evidence Code § 913 provides that when a privilege is exercised, the trier of fact may not draw any inference from it about credibility or any matter at issue. California is more protective than federal civil courts on this point.
• Silence does not win the case. The judge can still rule on the evidence that was presented. If the petitioner’s testimony is the only account of what happened, it may be enough.
• It cannot be used as both sword and shield. A respondent who testifies about the incident on direct examination generally cannot then refuse to answer cross-examination on the same subject. Courts may strike testimony or limit a party who invokes selectively.
• Waiver is a real risk. Voluntary sworn statements about the incident, including in a written declaration, can undermine a later claim of privilege on that subject.

Option 1: Continue or Stay the Restraining Order Hearing

A respondent is generally entitled to one continuance as a matter of course for a reasonable period to respond (Fam. Code § 245; Code Civ. Proc. § 527.6). After that, the court may continue the hearing for good cause. A pending criminal case arising from the same facts is a commonly cited reason. See getting a continuance of a restraining order hearing.

California appellate courts have addressed parallel proceedings in ordinary civil litigation. In Pacers, Inc. v. Superior Court (1984) 162 Cal.App.3d 686, the Court of Appeal directed the trial court to postpone civil discovery from defendants who faced possible prosecution. Later decisions, including Fuller v. Superior Court (2001) 87 Cal.App.4th 299, describe the question as one of discretion: the court weighs the interests of the party claiming the privilege, the opposing party’s interest in a prompt resolution, the court’s own calendar, and the public interest. There is no absolute right to a stay.

In restraining order cases, judges are concerned with the protected party’s safety and with statutory timelines. Requests for more time are more likely to be granted when:

• a temporary restraining order or criminal protective order is already in place, so the petitioner remains protected during the delay;
• the respondent has complied fully with every order;
• charges have actually been filed and the criminal case has a foreseeable end;
• the request is specific, for example to a date shortly after the next criminal court date.

Trade-offs. The temporary order stays in effect during every continuance, along with its firearm, move-out, and custody terms. A long delay can mean many months under an order that has never been tested. And if the criminal case ends in a conviction or plea, that result will be used in the restraining order hearing.

Option 2: Contest the Hearing Without Testifying

The petitioner has the burden of proof. A respondent can hold the petitioner to that burden without taking the stand:

• Cross-examination. The petitioner must testify to obtain the order. Inconsistencies with the petition, the police report, 911 audio, medical records, and prior messages are often the strongest defense evidence.
• Documents and recordings. Text threads, call logs, location data, photographs, and surveillance or doorbell video can be authenticated through other witnesses or the petitioner.
• Third-party witnesses. People who saw the incident or the parties’ interactions before and after. See using witnesses at a restraining order hearing.
• Legal arguments. Whether the alleged conduct meets the statutory definition, whether the required relationship exists, and whether the evidence reaches the applicable burden of proof.

This approach works best when the petitioner’s account has documented weaknesses. It is harder when the case turns on two people’s memories of a private event.

Option 3: Testify

Sometimes testifying is the right decision: no charges have been filed and the prosecutor has formally declined the case, the respondent’s account is fully supported by objective evidence, or the stakes in the restraining order case (custody, a career, immigration status) outweigh a remote criminal risk. That assessment should be made by counsel who has reviewed the police report and the criminal exposure, and testimony should be prepared accordingly. See our case study on a District Attorney rejection followed by a DVRO hearing.

Keep in mind that a prosecutor’s decision not to file is not always final. Charges can be filed any time within the statute of limitations, which for some domestic violence offenses is several years.

The Written Response: Deny Without Handing Over a Statement

Filing a response (form DV-120, CH-120, EA-120, or WV-120) tells the court the request is opposed. Because the form and any attached declaration are signed under penalty of perjury, the level of factual detail is a strategic decision when criminal exposure exists. Common approaches include a response that opposes the requested orders and relies on exhibits and third-party declarations, with any narrative from the respondent limited and reviewed by counsel. See how to respond to a restraining order.

Using the Restraining Order Hearing to Strengthen the Criminal Defense

In a misdemeanor case, the defense ordinarily has no chance to question the complaining witness under oath before trial. A contested restraining order hearing provides one. Testimony given there can be used to impeach later inconsistent testimony (Evid. Code §§ 770, 1235). To use it, there must be a record. Many family and civil departments do not provide a court reporter automatically, so arrangements for a certified reporter should be made in advance.

A denial of the restraining order does not bind the prosecutor, but a transcript showing that a judge heard the accuser and did not find the allegations proven, even under the lower civil standard, is a meaningful tool in negotiations.

How Each Case’s Outcome Affects the Other

Which Order Controls When They Conflict?

A criminal protective order under Penal Code § 136.2 and a family court order can contain different terms, for example, a full no-contact order in criminal court and a family court order that allows contact for custody exchanges. By statute, the criminal court order generally takes precedence in enforcement over a conflicting civil order, with a narrow exception for an emergency protective order that is more restrictive. Criminal courts can write a protective order to permit peaceful contact for court-ordered visitation, but unless the criminal order says so, the stricter term applies. Violating either order is a crime.

Both types of order prohibit firearms and ammunition. See firearm surrender after a restraining order and Penal Code § 29825.

Mistakes That Damage Both Cases

• Writing a long, emotional declaration without legal review.
• Contacting the petitioner to “work it out,” which violates the temporary order and can be charged as dissuading a witness.
• Asking friends or family to speak to the petitioner about dropping the case.
• Skipping the restraining order hearing to avoid testifying, which results in a default order.
• Using separate lawyers who never speak to each other.
• Talking to police or to the petitioner’s attorney without counsel.
• Posting about either case online.

Decision Guide: Which Approach Fits Which Situation

These are general patterns, not recommendations for any particular case. The right approach depends on the evidence in both files.

Frequently Asked Questions

Can what I say at a restraining order hearing be used against me in a criminal case?

Yes. Testimony at a restraining order hearing is given under oath, and written declarations are signed under penalty of perjury. Prosecutors can obtain transcripts and filings and offer the respondent’s statements as evidence in a criminal case arising from the same events.

Can I plead the Fifth at a restraining order hearing in California?

Yes. The privilege against self-incrimination applies in civil proceedings when an answer could tend to incriminate the witness. It is asserted question by question. Under Evidence Code section 913, the judge may not draw an inference from a valid claim of privilege, but the judge can still decide the case on the other evidence presented.

Will the judge postpone the restraining order hearing until my criminal case is over?

Possibly. There is no automatic stay. A respondent is generally entitled to one continuance, and a judge has discretion to grant further continuances or a stay for good cause after weighing both sides’ interests. Any temporary restraining order normally stays in effect during the delay.

If the criminal charges are dropped, does the restraining order go away?

No. The cases are separate. A restraining order can be granted even when charges are never filed, are dismissed, or end in acquittal, because the restraining order standard is lower than proof beyond a reasonable doubt.

If I win the restraining order hearing, will the criminal case be dismissed?

Not automatically. The prosecutor is not bound by the civil judge’s decision. A denial after a contested hearing can still matter, because the petitioner’s sworn testimony and any credibility problems are now on the record.

Which order do I follow if the criminal protective order and the family court order say different things?

A criminal court protective order generally takes precedence in enforcement over a conflicting civil or family court order, with a narrow exception for a more restrictive emergency protective order. When in doubt, follow the most restrictive term of any order in effect.

Should I file a written response if I have a criminal case pending?

Often yes, but its content needs care. A response is a sworn statement. Counsel will usually decide how much factual detail to include, and whether to rely on other evidence and witnesses, after reviewing the criminal exposure.

Can my criminal defense lawyer cross-examine the accuser at the restraining order hearing?

Yes. The petitioner must testify and can be cross-examined under oath. That testimony can be recorded by a court reporter and later used to impeach inconsistent testimony in the criminal case.

Does a no contest plea affect the restraining order case?

It can. A conviction for a domestic violence offense is strong evidence in a later restraining order hearing and can trigger the custody presumption in Family Code section 3044. The effect of a no contest plea depends on whether the offense is a felony or a misdemeanor and how it is offered, so the plea should be evaluated with both cases in mind.

Do I need two lawyers?

Not necessarily. What matters is that the restraining order case and the criminal case are defended under one coordinated strategy, ideally by the same attorney or firm, so that a step taken in one case does not damage the other.

Legal Authorities Referenced

• U.S. Const., 5th Amend.; Cal. Const., art. I, § 15
• Evidence Code §§ 770, 913, 940, 1220, 1235
• Family Code §§ 245, 3044, 6306
• Code of Civil Procedure § 527.6
• Penal Code §§ 136.1, 136.2, 273.5, 273.6, 243(e)(1)
• Pacers, Inc. v. Superior Court (1984) 162 Cal.App.3d 686; Fuller v. Superior Court (2001) 87 Cal.App.4th 299

Talk to a Firm That Handles Both Cases

Power Trial Lawyers defends restraining order respondents and criminal defendants throughout Southern California, and regularly handles both cases for the same client. Decisions about continuances, written responses, and testimony are made with the full picture in view. Contact the firm to discuss your case.

This page provides general information about California law. It is not legal advice, and reading it does not create an attorney-client relationship. Whether to testify, invoke a privilege, or seek a continuance depends on the facts of each case and should be decided with counsel. Reviewed by Matthew Barhoma, Esq., Power Trial Lawyers. Last updated November 2026.