Domestic Violence Restraining Orders
Restraining Orders are a very serious matter that deserves your immediate attention. If a person, generally a spouse or partner, asks the court to issue a restraining order against you because of alleged domestic violence or other domestic conflict, you are entitled to be notified of the request. You are also entitled to have a court hearing and to defend yourself.
What to Do If Someone Files a Restraining Order Against You? (Defending a Restraining Order)
If a person, generally a spouse or partner, asks the court to issue a restraining order against you because of alleged domestic violence or other domestic conflict, you are entitled to be notified of the request. You are also entitled to have a court hearing and to defend yourself.
You also have the right to be represented by an attorney. Keep in mind that in restraining order proceedings, you are not entitled to free counsel or a court-appointed attorney.
You should never ignore a restraining order request. Instead, you should get information about your rights and options, consult with a lawyer, and participate in the court process. Once a restraining order is entered, you can be charged with a crime if the protected party accuses you of violating the order.
It is important to consult with an attorney regarding the consequences of moving forward with a family law restraining order when there is a criminal matter pending. Any information provided by the court in connection with your family law restraining order can be used against you in a criminal court proceeding.
California court have the power to enter a temporary restraining order that will last for a few days, without first holding a hearing and without the target of the order being present. However, the judge must conduct a formal hearing before entering a permanent order. These hearings, to which the respondent receives notice, are usually set quickly, so you may have only a week or ten days to make decisions and prepare for the hearing. Do not wait until the last minute to consult and retain an attorney.
What To Do if Served With a Restraining Order?
If you were served with a temporary restraining order, you must follow the orders contained in the documents that you were served. Additionally, gather the following information/documents prior to consulting with a lawyer:
- all existing physical evidence relating to any incidents or events referenced in the request for restraining order. These include clothing, photos, videos, and objects.
- any documents that relate to the case, such as letters, emails, phone (text messages, caller id) and computer records (Facebook, LinkedIn, Instagram)
- make a list of possible witnesses.
If the petitioner has made false accusations about an incident, you might have evidence that clearly contradicts the allegations made by the party requesting the restraining
order. For example, if the moving party states that you called repeatedly, producing a copy of your cell phone bill can go to show that you did not call the petitioner.
Obtaining a Restraining Order
Courts have the authority to issue restraining orders that require a person to stop certain behaviors, such as contacting or abusing the person who requests the order (petitioner). Most restraining orders are issued in connection with domestic violence or conflict in intimate or family relationships, including physical abuse, harassment, stalking and sexual assault. Courts also can issue restraining orders in civil matters—for instance, prohibiting a person from contacting a non-family member or intimate partner or from going to a certain business or professional office.
A restraining order is a court order issued to prevent the recurrence of acts of abuse by a batterer. Under the Domestic Violence Prevention Act, abuse is defined as any of the following:
- Intentionally or recklessly causing or attempting to cause bodily injury.
- Sexual assault.
- Placing a person in reasonable apprehension of imminent serious bodily injury to that person or to another.
- Engaging in any behavior that has been or could be illegal such as molesting, attacking, striking, stalking, threatening, battering, harassing, destroying personal property, contacting the other by mail, telephone, or otherwise, disturbing the peace of the other party.
To obtain a Domestic Violence Restraining Order you MUST have, or have had, a close personal relationship with the party you are asking to have restrained. Under the law, a relationship is defined as “close” if at least one of the following is true:
- You are married or were formerly married to the other party.
- You have or formerly had an engagement or dating relationship with the other party.
- You and the other party have a child or children together.
- You are related to the other party by blood, marriage or adoption, e.g., (mother, father, in-laws, siblings, adult children).
- You and the other party are living together, or formerly lived together, as members of a “household.”
- The act(s) of abuse/violence must be recent, within 30 days.
The restraining order can include the following: restraints on personal conduct by the batterer; orders for the batterer to stay away from the victim’s home/work and/or children’s school; orders for the batterer to be removed from the residence; child custody and visitation and support orders and other miscellaneous orders.