If you are currently experiencing an emergency and believe you or a loved one are in imminent danger, call 911 right away.
If you believe someone is harassing you, physically assaulting you or your child (or both), it may be possible to get a restraining order against that person in order to make the violence and/or harassing behavior stop.
We all deserve to live our lives with some measure of peace. Things are hard enough without having to endure someone who is hurting you or constantly disrupting your ability to go about your day-to-day business. Oftentimes what happens is that a person may think they can’t get a restraining order for whatever reason, or worse, someone has intimidated them to the point where they’re too afraid to take legal action to protect themselves or a loved one.
So please, read the following and contact me if you believe you need the protections a restraining order can provide. On the other hand, if a restraining order has been issued against you and you believe it should not have been, I want to hear from you because you need legal advice as soon as possible.
Please know that the following is not intended to be an all-encompassing discussion on restraining orders. It does not cover every type of restraining order, and is not necessarily meant to apply to your circumstances. The unique facts of your circumstances will dictate what’s right for you.
Generally speaking (very generally), a court may grant your request for a restraining order if there is abuse or harassment being perpetrated against you. According to California Family Code 6203, abuse constitutes 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 another person
- Engaging in any behavior that has been or could be enjoined (stopped). This includes striking, stalking, threatening, disturbing the peace, and even preventing someone from harming or taking your pets.
That said, your situation will dictate what specific type of restraining order you’ll want to ask for.
Different Types of Restraining Orders; What Type Do I Need?
First, yes, there are different types of restraining orders, and what you will need depends on your circumstances. Most restraining orders start out as temporary restraining orders (TRO). Depending on the facts of the case, the order can then either be rescinded or made permanent. Note that the use of the word “permanent” here can does not necessarily mean forever. A court can issue a permanent order for 2 or 3 or 5 years or more (or less) depending on what is appropriate under the circumstances.
Domestic Violence Restraining Order (DVRO)
A domestic violence restraining order helps protect people from abuse or threats of abuse from someone they have a close relationship with. A DVRO is appropriate when a person you have a close relationship with (including a “dating relationship) has abused (or threatens to abuse) you. For the purpose of a DVRO, close relationships apply to:
- Married or registered domestic partners
- A person you’ve divorced or separated from
- Someone you are currently dating or used to date
- Someone you are living with or used to living with (but were more than just roommates)
- Children of abusive parents
- Parents abused by their children
- Any person to whom you are closely related, including brothers, sisters, grandparents, and in-laws. However, this does not include aunts, uncles or cousins (see Civil Harassment below).
You may also request a DVRO be issued someone who is abusing your children or another family member.
Civil Harassment Restraining Orders
The California Code of Civil Procedure 527.6 deals with civil harassment. The Code is long and complicated, but in general, a court will look at three things:
(1) “Course of conduct” is a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose, including following or stalking an individual, making harassing telephone calls to an individual, or sending harassing correspondence to an individual by any means, including, but not limited to, the use of public or private mails, interoffice mail, facsimile, or email. Constitutionally protected activity is not included within the meaning of “course of conduct.”
(2) “Credible threat of violence” is a knowing and willful statement or course of conduct that would place a reasonable person in fear for his or her safety or the safety of his or her immediate family, and that serves no legitimate purpose.
(3) “Harassment” is unlawful violence, a credible threat of violence, or a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose. The course of conduct must be that which would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the petitioner.
Who can you file a civil harassment suit against? A civil harassment suit may be filed against family members not included in the DVRO rules, such as an aunt, uncle, cousin, niece, or nephew. Non-family members include roommates you haven’t had a dating relationship with, neighbors, former friends, employers, and so on. In short, it could be anyone not considered a close family member.
Emergency Protective Order (EPO)
If you are in immediate danger, call 911 because an EPO is issued at the request of a police officer. California Family Code 6250 states:
A judicial officer may issue an ex parte emergency protective order where a law enforcement officer asserts reasonable grounds to believe any of the following:
(a) That a person is in immediate and present danger of domestic violence, based on the person's allegation of a recent incident of abuse or threat of abuse by the person against whom the order is sought.
(b) That a child is in immediate and present danger of abuse by a family or household member, based on an allegation of a recent incident of abuse or threat of abuse by the family or household member.
(c) That a child is in immediate and present danger of being abducted by a parent or relative, based on a reasonable belief that a person has an intent to abduct the child or flee with the child from the jurisdiction or based on an allegation of a recent threat to abduct the child or flee with the child from the jurisdiction.
(d) That an elder or dependent adult is in immediate and present danger of abuse as defined in Welfare and Institutions Code 15610.07 based on an allegation of a recent incident of abuse or threat of abuse by the person against whom the order is sought, except that no emergency protective order shall be issued based solely on an allegation of financial abuse.
California Family Code 6251 states:
An emergency protective order may be issued only if the judicial officer finds both of the following:
(a) That reasonable grounds have been asserted to believe that an immediate and present danger of domestic violence exists, that a child is in immediate and present danger of abuse or abduction, or that an elder or dependent adult is in immediate and present danger of abuse as defined in Section 15610.07 of the Welfare and Institutions Code.
(b) That an emergency protective order is necessary to prevent the occurrence or recurrence of domestic violence, child abuse, child abduction, or abuse of an elder or dependent adult.
What Does A Restraining Order Do To Protect Me and My Loved Ones?
A given restraining order can require the person the order is issued against to:
- Stay away from you; this means no contact either verbally, physically, or via phone, email, text, and so on. This can also include preventing a person from contacting your family and even any children you have together. Note also that the contact does not have to be direct. Harassing you through another person can constitute a violation of the protective order.
- Sell or store any firearms they may own.
- Cease the harassing conductIf the order is violated, fines criminal charges could result.
The above is a brief and general rundown of the basic protections a protective order provides. There are likely specific protections you will want to request.
How Long Does It Take To Get A Restraining Order?
Having a judge issue a restraining order can happen pretty fast and is done by way of what’s called an ex parte motion. Ex parte refers to a motion or petition by or for one party. An ex parte judicial proceeding is one where the opposing party has not received notice nor is present. This is an exception to how things usually work because in most proceedings, both parties must be present in order for a court to issue an order.
California Family Code 6320 describes in more detail when an ex parte order may be issued.
(a) The court may issue an ex parte order enjoining a party from molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, credibly impersonating as described in Section 528.5 of the Penal Code, falsely personating as described in Section 529 of the Penal Code, harassing, telephoning, including, but not limited to, making annoying telephone calls as described in Section 653m of the Penal Code, destroying personal property, contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party, and, in the discretion of the court, on a showing of good cause, of other named family or household members.
(b) On a showing of good cause, the court may include in a protective order a grant to the petitioner of the exclusive care, possession, or control of any animal owned, possessed, leased, kept, or held by either the petitioner or the respondent or a minor child residing in the residence or household of either the petitioner or the respondent. The court may order the respondent to stay away from the animal and forbid the respondent from taking, transferring, encumbering, concealing, molesting, attacking, striking, threatening, harming, or otherwise disposing of the animal.
A Restraining Order Has Been Issued Against Me: What Do I Do?
First things first: read the order carefully and do not violate it, no matter how strongly you believe that it should never have been issued. It does happen that sometimes people will use restraining orders as a weapon to punish someone they’re upset with or to deny them the right to see their children. This can leave the person victimized by the wrongful issuance of a protective order emotionally devastated, and subject to fines and criminal punishment. If the order requires you to move out of the house, you may suddenly find yourself with nowhere to go.
Whatever the case, you need to respond as soon as possible to the order—assuming you have time to respond. If the order was issued ex parte, you may not have found out about the order until after it was issued. In such a case, the order will usually remain in place until there is a hearing on the matter.
Whether you will be able to get the order modified or lifted altogether will depend on the circumstances of the case. This is something you do not want to handle on your own. Even if you don’t call me, do yourself a favor and call someone to help you out with this. Just a few of the consequences of violating a restraining order can include jail time, fines, having to complete a domestic violence training program, and even the denial of access to your children.
If you can show that the party who had the order issued against you did so falsely and they knew they were making false allegations, there are remedies available to you, which include attorney’s fees, costs, supervised visitation if you have children together, and more.
Please note that the foregoing does not constitute legal advice, nor is it meant to apply to your specific circumstances or establish an attorney-client relationship.