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Restraining Order Process in California

Posted by: Admin on December 7 2019 13:50:56.

Restraining orders in California

A restraining order can be necessary when you feel that someone is threatening you, stalking you, or your life is in danger. Getting a restraining order means that the person you file against has to. By law, stay away from you, or else they will go to jail as they have been ordered by the court to do so.

Types of restraining orders

There are three basic types of restraining orders in California:

Emergency protective order (EPO)

California law, section 6350, family code, allows an officer of the law to file for a restraining order if they feel that the victim is in danger of being exposed to physical/domestic violence from the person that they need to get the order against.

For such types of restraining orders, judges need to be available 24/7 so that they can issue the EPO’s. The law enforcement officer can only request these for the person that they feel is in danger.

For these restraining orders to be valid, a commissioner or a judge needs to issue it once it has been established under family code section 6251. The requirements set are:

  1. The office has enough reason to believe that the victim is exposed to domestic violence, and their life can be in danger.
  2. A child is involved, and there is a fear of them being abducted or abused.
  3. An adult who is dependent or elderly is in danger.
  4. The EPO will ensure that there is no repetition of abuse, and it stops the child from being abducted or abused.
  5. It will ensure that the dependent person or elderly is protected from a repetition of abuse or stops it from happening in the first place.

The EPO, once it has been issued, will come into effect immediately or will be enforceable for one week. In case the abuser lives in the same house as the victim, the judge can ask them to leave until the restraining order is in effect.

In the case of civil harassment, an EPO will only be issued if there is a stalker involved. An EPO ensures that the abused is safe until they finish the process of applying for proper retaining order. If the judge has granted a domestic violence restraining order, then it will be valid for the next three years.

A temporary restraining order (TPO)

This type of restraining order will be active for at least 20 to 25 days. They will only be issued if the judge believes that the person in question is in immediate danger and requires protection before the court’s ruling for the case.

Near the end of the restraining order period, the victim will have to attend a court hearing in which the judge will rule whether the restraining order needs to be made permanent.

Permanent restraining order

This will be granted after the issuance of a TPO. Before a permanent restraining request is issued a court will hold a hearing; during this hearing, the judge will decide whether the person who is seeking protection is actually in danger from the other person. Based on that decision, a permanent restraining order may or may not be granted.

The duration of the restraining order will depend on its type; a civil harassment restraining order will be valid for three years, a domestic violence restraining order will be valid for five years.

Asking for a restraining order

There are many steps that you need to follow if you want to as for restraining order. Here we will discuss how to get a civil harassment restraining order. Before we discuss the steps, you need to make sure that you ask yourself:

  1. Is a civil harassment restraining order right for you?
  2. Do you qualify to get a restraining order? You will be able to be eligible if:
    1. The person you are getting it against has been stalking you, sexually assaulted or harassed you, or threatened you with some violence.
    2. If you are seeking it from is a roommate, a neighbor, a family member (removed more than two degrees), a person you aren’t related to closely, a friend.
  3. Is there any agency in your area that you can get help from?

When you have determined that you can qualify for a civil harassment restraining order, then the next step will be to fill out the relevant forms. You can either do that yourself or get a lawyer to help you with the process. If, at any point, you are not sure about what to do next, seek help from a lawyer. If there is a domestic violence agency in your area, then get help from them as well. Look for a self-help center of your court to help you get the restraining order.

Filing a Request for a Restraining Order

Step 1

You will need to fill out all the necessary court forms and then prepare to file them in court. The forms that you will need to fill out will be:

  • Request for Civil Harassment Restraining Orders
  • Confidential CLETS Information
  • Items 1 and 2 on Notice of Court Hearing
  • Items 1, 2 and 3 on Temporary Restraining Order
  • Civil Case Cover Sheet – your court clerk will tell you if you need this.
  • Additional Page – in case you need more room to describe your situation and why you need a restraining order.
  • Declaration or Attached Declaration – for the witness that what to describe your situation and what you have been through.

Step 2

Once you have filled out the forms, you will need to file them with the court. One thing you need to take note of is that the procedure of filing papers for a restraining order will be different for every court. Make sure that you talk to the court clerk and check the process before you proceed.

The general steps that you will need to follow are:

  1. Taking the forms to court's clerk
  2. Finding out whether the judge issued a temporary restraining order
  3. Filing your forms
  4. Distributing (if it was issued) the copies of the temporary restraining order

Step 3

You will now need to serve the papers on the person that you got the restraining order. This means that the other person will need to get copies of all the documents that you filed with the court. A third person will be required to take those papers and hand them over to the other party. The person who makes these papers is called a process server or server.

The requirements of the server are:

  • They must be 18 years or older
  • Is not protected by the orders

Step 4

Be ready to get a court date and go to the court hearing. There are a few things you need to do before you go to the court hearing:

  • Be prepared – make sure that you have all the documents and copies of it too. You can take witnesses with you as well. In case you don’t speak English, then you will need to find an interpreter. You cannot take any children with you.
  • Make sure that you do not miss your hearing date.
  • Ensure that you get there at least 30 minutes early. Find the courtroom, check-in, and go to the front when called. Be present throughout the whole process.
  • Take some time before the hearing and practice what you will need to say.
  • Be prepared for questions as the judge may ask a few during the hearing. Tell the truth and make sure that you are clear in stating everything.
  • The judge will pass his decision at the end of the court hearing. The judge may decide in your favor ultimately, or half of it, or even none. The judge may also postpone your case, so make sure you ask for a new date.

In case the temporary restraining order is extended, make sure you collect the right forms from the clerk. Fill them out and file them.

Step 5

After the court hearing, if the judge passes orders for any restraining order, you will need to make a writer order so that the judge can sign it. There are a few courts that make sure that the court staff or the clerk prepares these orders. In such instances, make sure that you read the legal documents correctly and that the clerk or staff wrote down precisely and all of what the judge said at the end of the hearing. If you feel that there is a problem with the papers, then talk to the clerk at once.

Sometimes it is essential to get a restraining order for yourself to protect one from any violence. Even though the process is long, do not be afraid and file for what is right for you. It will ensure you or your child’s safety in the end. Seek help if you feel that you cannot go through the process alone or if you don’t understand anything.

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