A restraining order is an order issued by the court to protect an individual from being stalked, threatened, sexually or physically abused, or harassed. It is also termed a protective order, and the person getting the orders is known as the "protected person." In some cases, the "protected person" can be more than one person, and can be members of a particular family. If a person has abused you with who you have a close relationship, either a spouse, a person you have born a child with, a parent, sibling, or in law, you can reach out to the Riverside Criminal Defense Attorney Law Firm to help you file for a domestic violence restraining order.
What Does a Restraining Order Include?
Below are some of the things that a restraining order does:
- Personal Conduct Orders — These are meant to avoid various acts against people listed in the restraining order. Here are examples of actions that the restricted person could be ordered to stop:
- Calling or sending messages
- Acts that disturb the peace of the protected persons
- Destruction of personal property
- Harassing or threatening
- Assaulting, attacking, or striking
- Stay – Away Orders — A restrained person is given orders to stay about 100 yards away from the protected person in:
- Their place of work
- Their vehicle
- Their residential place
- Their children's daycare or school
- Residence Exclusion — These are also known as the move-out or kick out orders, and it orders the restrained person to vacate to another place away from the protected person. The restrained person is only allowed to take their personal belongings like clothes till the court hearings.
A restraining order can also order a restrained person to:
- Stay away from the protected person’s pet
- Pay specific bills
- Return or release specific property
- Avoid incurring large expenses
- Not have a gun
- Not to make significant changes on insurance covers
- Attend a batterer intervention program for 52 weeks and complete it successfully.
Note that there are things that a restraining order cannot do, like ending your marriage or establishing the paternity of your kids.
The restrained person risks going to jail if they break the restraining order.
What are the Effects of Restraining Orders on the Restrained Person?
A restrained person can suffer severe consequences after a court order. Some of which include:
- They may be unable to see their kids.
- They may be unable to do some things or visit some places
- Their immigration status may be affected.
Types of Domestic Violence Restraining Orders
Below are some of the restraining orders associated with domestic violence:
- Temporary Restraining Order — Once you present yourself in court asking for a domestic violence restraining order, you need to explain everything to the judge and make them understand why you need the restraining order. If the judge feels that you need to be protected by the law, they will issue you a temporary restraining order. This order is normally active for up to 25 days before the court hearing.
- Emergency Protective Order — In this restraining order, law enforcement usually calls a judge and requests the restraining order. They can request at any given time of the day or night since judges are available 24 hours a day to issue the emergency protective order. The EPO is active immediately after it is issued and can last for seven days. The judge also has the right to order the restricted person to vacate and move away from the protected person and his children and pets for a week. The one-week duration is enough for the protected person to proceed to court and file for a temporary restraining order. You can also request the court for a temporary restraining order if you want a restraining order that lasts longer than the emergency protective order.
- Permanent Restraining Order — After attending the court hearing for your temporary restraining order, the judge may decide to offer a permanent restraining order depending on your case. Permanent restraining orders last up to 5 years. If you still need protection after five years, you can request a new restraining order.
- Criminal Protective Order — If domestic violence incidents occur, the district attorney may file the abusers/abuser with criminal charges. This is usually the beginning of an ongoing criminal court case. Depending on your case, the court may offer a criminal protective order while the case is continuing. If the defendant pleads guilty or is found guilty, the criminal protective order runs for three years after completing the case.
- Dependent/ Elder Adult Abuse — These restraining orders are issued to you if you:
- Are 65 years and above
- Persons between 18 and 64 years living with a physical or mental disability that hinder them from performing general activities;
- You have undergone:
- Financial or any physical abuse
- Treatment that affected your mental or physical health negatively
- Abandonment or negligence
- Deprivation of essential services or things can lead to mental, physical, or emotional suffering.
- Restraining Orders and Teens — Domestic violence restraining orders do not only protect married people or adults alone; many states have enhanced their laws to ensure that young adults and teens get rescued by the law.
Restraining Order Process
If you file for a domestic violence restraining order, you have to file forms in court explaining to the judge the orders you want and the reason. The following steps may vary in different courts, but the main steps in court cases include:
- You file court forms requesting the restraining order. The filing is free of charge.
- Depending on the stated reasons, the judge may decide whether to make the order on the next business day or not. Some judges make this decision sooner.
- If the judge approves and gives you the domestic violence restraining 'order, they will first grant a temporary order which will be active until your court hearing. The court date is usually recorded on the paperwork.
- After you are granted the orders, you will be required to share a copy of the orders with the restrained person before the court date. It would help if you gave an adult (18 and above) and not involved in the case the copies to hand-deliver them to the restrained person.
- The restrained person can file a reply to the orders giving their side of the story.
- Both parties attend the court hearing.
- When you fail to attend the court hearing as the protected person, your temporary restraining order will expire on that specific day, and you will not be granted a restraining order.
- On the other hand, when the restrained person fails to show up at the court hearing, the judge ignores their side of the story and proceeds to make a decision.
- The status of your temporary order will depend on the judge’s decision during the hearing. They can decide to continue or alter the order. If your temporary order is set to continue, it will be a permanent order, and it can be active for three years.
- In some cases, the judge may decide to add more orders in the domestic restraining order like child support and custody. These orders last until 18 years, and in some cases, the judge may decide to change them after some time.
Restraining Order Enforcement
You are supposed to take action when a restrained person goes against the restraining orders. Here are some of the steps that you should take:
- Call the Police — After calling the police:
- Present them with a copy of the restraining orders and let them know what happened. Be sure to state only facts.
- If you had not issued the restrained person with a copy of the orders, request the police to offer it to them and ensure that the policy fills out the proof of personal service form and gives it back to you. Note that you have to file this form in court.
- Collect Evidence to Prove the Violation — You can use the following ways to prove that the restrained person indeed violated the restraining orders:
- Have witnesses write declarations or statements.
- Keep any threatening messages you received
- Record threatening voicemail messages
- Note down the specific events that occurred and the location, time, and witnesses.
- Record any communication
- Print any internet postings and emails that were threatening
- If you sustained any injuries, have the medical copies
- Get police report copies.
- Gather Copies of the Restraining Order and Issue them to Key people — You can get proof of service and copies of the restraining order from the court receptionist then:
- Please have a copy with you wherever you go because the police may request to see it. You can put one in your bag and the other in your vehicle.
- Issue a copy where the restrained person has been restricted to visit, for example, your workplace or school.
- Issue a copy to the people protected under the order
- Also, issue a copy to the police in your area and request them to enter it in CLETS, where police from the whole state can access it.
What Happens When the Restraining Order is Violated?
When a restrained person violates the domestic restraining order, it is considered a crime, and they can be fined or taken to jail for disobeying the judge's orders. You can also:
- Take the case to your district attorney and ask how they will handle your case. The district attorney can file court charges against you, and you can always follow up on the case's progress.
- You can also file a contempt action requesting the judge to use the contempt court to find the restrained person for failing to obey the restraining order. In some cases, the judge may decide to punish the restrained person by spending five days in jail for every violation.
It is important to note that:
- Contempt actions have severe consequences like going to jail and should be the last option if the restrained person occasionally violates the order.
- Contempt cases are not easy to handle, and the restrained person is entitled to a court-appointed lawyer.
- Ensure you have details of each occasion that the restrained person violated the restraining order, including the location, pictures, time, and date.
How to Enforce Out of State Restraining Orders
Domestic violence restraining order issued in a different state is still valid in California. It must be enforced by law enforcement as long as it's active. However, you need to first register your order by putting your restraining order into California's computer system. After your restraining order is keyed in the system, the California law enforcement can access it if you need to call them concerning the same.
How to Register Your Order With the Court
Here are a few steps to guide you on how to take your order to court:
- Fill the CLETS (Tribal Court Restraining/Protective Order to Register Out of State )
- Please make a copy of the restraining order and take it to your local court together with your Form DV-600
- After the court has registered your restraining order in California, request them to send it to the state computer system, or you can opt to take it yourself to the nearby police station.
Things to Note before Going to Court
Here is guidance on what you should do before, during, and after the hearing.
Before the Hearing
Ensure you have the following:
- Three copies of the forms you filed for your court case
- Three copies of documentation supporting your claim, for instance, rental agreements, medical reports, police reports, relevant photos, and bills. You should also present what you give the judge to the other party. In some instances, the judge will decide the specific documents to be used for that particular case.
- There are three copies of proof of income or pay stubs, but this applies to orders concerning money and child support. If the judge verifies your evidence, they will authorize you to share it with the other party.
If need be, arrange for:
- A person to offer support. But note that the person cannot be allowed to speak for you during the hearing.
- Witnesses — Have one or several witnesses to testify in court. If they cannot attend physically, you can present a signed statement with what they saw. This can be on a piece of paper with a declaration on top and a signature under penalty at the bottom.
- Exception — If the other party objects to what your witness testifies, the witness must physically attend the court hearing if you want the judge to listen to their side of the story.
- A proof of service form that has been signed
- Memorize the things you want or do not want. The judge may give you a few minutes to say them, but you are allowed to refer from your list if you cannot remember them.
- Childcare — Most courts do not allow kids in the courtroom at the time of the hearing. It is essential to contact the court before the hearing and confirm if they have an extra room for the kids. If not, you can make childcare arrangements.
- An interpreter — If you do not fully understand English, request an interpreter. You may be asked to fill a form to request an interpreter during the hearing. If the court cannot offer an interpreter, request an adult to attend the hearing and interpret for you. You cannot have a child or someone involved in the case as an interpreter.
If the hearing is against you:
- Attend the hearing — If you are not able to attend, the judge will still make the orders without your side of the story.
- Gather information on how to respond to a request on a Domestic Violence Restraining order. You can find this information on DV-120-INFO.
- You can fill and file form DV-120 to let the judge know your side of the story. Cary 3 copies of this form to the hearing.
- If the other party requests orders to do with child support or money in general, read form DV-570 and learn if you should fill a simplified financial statement or an income and expense declaration.
During the Hearing
It is always advisable to get to court 30 minutes earlier and find your courtroom. After the courtroom is open, alert the clerk that you are present and give them the names of the witnesses. This is also the perfect time to request an interpreter.
- Sit some distance away from the other party and let the officer know if you are scared of the other party.
- Listen and watch the other cases to get a glimpse of what to expect.
- When your name is called, proceed to the front of the courtroom.
- Depending on the number of cases, you may have to stay in court for several hours. The hearing may take a few minutes or an hour.
Note that if you request a restraining order and fail to show up at the hearing, your temporary restraining order will be canceled, and the hearing may not occur. However, if the other party requests the court for some orders, the court may grant them even if the restraining order was not issued. You also have to file additional forms if you want another restraining order.
In the Courtroom
The other party and the judge can ask you questions, and you are expected to:
- Speak slowly, clearly, and tell the truth. It would be best if you also gave complete answers. You are allowed to refer from your list.
- Only answer what the judge asks.
- You are not supposed to interrupt anyone. Even if you want to correct what the other person is saying, wait for them to finish, then tell the judge.
- Direct your answers to the judge only not unless advised otherwise or not unless it is your turn to ask questions
- You can respond, "I don't understand the query," if you fail to understand the question.
The court may decide to continue or postpone your case if:
- Your hearing is taking longer than anticipated, or the judge wants to gather more information.
- The one to be restrained requires extra time to compose an answer or find a lawyer or have not been served.
In case of such instances, you are required to go back to court another day. The person who requested the restraining order may request that the temporary restraining order be extended until the next hearing date.
During the End of the Hearing
The judge usually makes decisions at the end of the hearing. The judge decides if the evidence provided is enough to issue a restraining order/ protection order. If the judge concludes that the person requesting restraining orders needs to be protected, they approve the orders. If the orders are made during the hearing, they will be available on the (form DV-130, Restraining Order After Hearing).
If you had requested the restraining orders:
- You may be asked to fill and file form DV-130 by the court clerk, or they may decide to fill it and take it to the judge. You are supposed to receive three copies of this from the clerk.
After the Hearing
If the court grants your order, you must issue the form DV-130 to the other party or give it to them after the hearing in the courtroom. Remember to always have a copy of the order every time.
If you had requested child custody or child support, you are supposed to get any of these forms:
- Form FL-132 or form FL-343
- Form DV- 140
Find a Domestic Violence Defense Attorney Near Me
The Riverside Criminal Defense Attorney Law Firm has skilled attorneys experienced in domestic violence defense. It can offer the competent help you require when requesting a restraining order or if challenging it. We will represent you at the court hearing and work closely to ensure that justice is served. Contact us today at 951-946-6366 and let us help you.