If you are a domestic abuse victim, you should seek protection from the abuser through legal means. One of the best lawful means to protect yourself from domestic violence is by filing a restraining order on the abuser. You should seek help from a family attorney to file a restraining order against a known or potential abuser to ensure that this process is successful. Contact us at the San Diego Divorce Attorney for the best legal services if you seek to file a restraining order against an abusive partner or family member.
Legal Definition of a Restraining Order and What It Can Do
A restraining order is a court order meant to protect you in situations of violence such as sexual assault, harassment, molestation, disturbance or peace, or threatening to do any violence. In California, there are three types of restraining orders that you can seek as a victim. These restraining orders include an emergency protective order, temporary restraining order, and permanent restraining order.
California courts define domestic violence as:
- Physically hurting or hurt someone recklessly or intentionally
- Sexual assault
- Making someone else to reasonably afraid of his or her safety or a close family member
- Behaviors such as hitting someone, stalking, harassing, or threatening
Please note, being physically abused does not just involve hitting. It also includes pushing, shoving, kicking, throwing things, scaring, following, restraining you from movement, destroying your property, and physically abusing your family pet. Also, abuse is not always physical. It can be made verbally, emotionally, psychologically, or financially. Most abusers use a combination of control or power over the victim.
Benefits of a Restraining order
The main goal of seeking a restraining order is to protect yourself from any potential incidences of violence. This means that a domestic violence victim can benefit in several ways from the restraining orders. If the person committing the abuse is a current or former intimate partner or household member, you can benefit from the protective order in the following ways:
- The restraining order may order the abuser to avoid assaulting, abusing, following, harassing, or interfering with you or your children by telephone or other means
- Order the abuser to stay away from the place that you request such as your workplace, your home, friends' home, school, and a place where you are seeking shelter
- Order the police to remove the abuser from your home and help you return to your home
- Grant a temporary control of things that you own with your partners such as electronic equipment, bank accounts, a truck, a car, and household appliances
- Order the abuser to continue repaying a loan if you have one (you should specifically ask for this if you need it)
- Order the abuser to return your belonging
- Order the abuser to pay back money that you missed due to the abuse or pay specific bills
- Order the abuse to pay your attorney fees
- Order the abuser to attend a batterer's treatment program or other counseling services
- Transfer a shared cell phone account into your name to ensure that your existing wireless telephone number and wireless number of any minor children in your care
- Grant you anything that you ask in court, and the judge agrees to offer
If you and your abuser have children, you can ask the judge to grant other things like:
- Removal of a child
- Child support payment
- Child custody and visitation
Please note, as much as the restraining order is beneficial to you, it cannot help in specific ways, like ending your marriage or domestic partnership or establishing parentage.
People Restrained by a Restraining Order
A domestic violence restraining order protects you from abuse from anyone with a close relationship with you. When defining “someone you have a close relationship with," this includes:
- Someone who you are married to or registered as partners
- Your ex-partner
- Someone that you used to date or currently dating
- Someone that you live with or used to live together
- The father or mother to your children
- Someone that you are near related to such as sister, grandmother, brother, in-law, and parents
If you are a parent and your child is a victim of abuse, you can file a restraining order on behalf of your child and protect him or her from the abuser. However, a child aged 12 years or older can file a restraining order on his or her own.
If you are being abused by someone who is not related to you in any way, you should file a civil harassment restraining order. This can be used against your roommate, neighbors, distant members like your aunt, uncle, cousins, and neighbors.
Types of Restraining Orders in California
As highlighted above, there are three types of restraining orders in California. Every type of restraining order is considered in particular instances and has varying effects on the recipient. Let's have a closer look at them.
Emergency Protective Order
In California, a law enforcement officer can request an emergency protective order if they reasonably believe that you are at immediate risk of domestic violence against the alleged abuser.
Under this statute, only a police officer can request an emergency protective order on behalf of the victim. Judges should be available anytime to issue the Emergency Protective Order upon request of the officer.
For the Emergency Protective Order to be eligible, it should be provided by a commissioner or judge and should be issued after you have established the following:
- Risk of child abuse or abduction
- Sufficient reason for the judge to believe that you are at risk of domestic violence
- A dependent adult or older adult is at risk of danger
- That the Emergency Protective Order will prevent child abuse, abduction, or other forms of domestic violence
- That the Emergency Protective Order will avoid a repetition of any form of domestic violence on a dependent person
Once the Emergency Protective Order has been issued, it will take immediate effect and be useful for a week (7 calendar days or five business days). If the abuser resides in your home, you can request the judge to order him or her to leave when the restraining order is in effect. This order aims to protect a victim of domestic violence from the alleged abuser while applying for a temporary restraining order.
Temporary Protective Order
A judge can issue a temporary protective order if he or she believes that you are at risk of abuse before the court rules out your case. The order lasts for 20 to 25 days. Once the period covered by this order is complete, you should attend a court hearing to seek a permanent restraining order against the alleged abuser.
Permanent Restraining Order
A permanent restraining order is issued after the temporary restraining order. A hearing must be held, and the judge should be convinced that you are in danger of domestic violence even after a temporary restraining order has been issued.
The length of time covered by the permanent restraining order varies depending on whether it is based on domestic violence or civil harassment. A domestic violence order usually lasts for five years while a civil restraining order lasts for three years.
Steps for Obtaining a Domestic Violence Restraining Order in California
There is a well-defined procedure used in obtaining domestic violence restraining orders in California. This process involves several essential aspects that significantly impact your desire to acquire the restraining order. These steps are as follows.
Step 1: Filling the Court Forms and Preparing to File
You can file a Domestic Violence Restraining Order in the county where the abuse happened. For people residing in San Diego, they can file the forms from the following places:
- Central courthouse (1100 Union Street, San Diego, CA 92101)
- Ramona Branch (1428, Montecito Road, Ramona, CA)
- North Country Regional Center (325 South Melrose Vista, CA, 92081)
- Superior Court of California, County of San Diego (South County Regional Center 500 3rd Avenue, Chula Vista, CA 91910)
- East Country Regional Center (El Cajon, CA 92020)
For more details about the above-stated courthouses, please visit the Local court website.
Once you have filed the forms, you can have them reviewed by your attorney and the court's clerk to ensure that everything is filled correctly. After the papers have been reviewed, you should make at least five copies of the form. Submit the original copy to the court and submit one of the copies to the alleged abuser. The extra documents should be submitted to other people that you intend to protect.
Some courts do not allow the making of the copies until the second step. Therefore, contact the court clerk before you make these copies. Also, the restraining person should get a chance to see everything that you write. However, if you are residing in a place where you do not want the restrained person to know about, you can use a program known as "Safe at Home" that gives a victim a secure address to file the court papers without revealing the address.
Step 2: File the Forms With the Court
Once you have filled all the forms, you can have them filed with the court. The process of filing the form varies from one court to the other. Therefore, you should check with the court clerk for the procedure used in your court. Generally, you have to follow the following steps:
Take the Forms to the Court Clerk
The court clerk should tell you what you should do. In some courts, the clerk will submit the forms to the judge while others would have you go to the courtroom. Either way, the judge should read the paper or speak to you and decide whether to make the requested orders. If you are expected to submit the forms to the court clerk, ask them to return them to check whether the judge has made an order as requested. The judge should decide by the next business day, although the exact timeline varies from court to court.
Find Whether the Judge Has Made a Temporary Restraining Order
You should return to the courthouse to pick your paperwork upon the request of the court clerk. Check the paperwork and confirm whether:
- The judge has signed the Temporary restraining order
- Whether the judge has made the changes to the order as requested
- The date of the court hearing (the court hearing date is also the date that your temporary order runs out. You must attend the hearing if you intend to make a permanent order)
- To make another type of order even if the judge did not make all the temporary orders that you requested
Please note, if you cannot avail yourself of the hearing at the scheduled time, the judge will dismiss your case. Therefore, call the court clerk to reschedule to a later date if you have a valid reason.
File your Forms
While you are filing your forms, the court will be making the order an official part of your court case's records. The clerk will keep the original document and give you the other copies with a "filed" stamp on them. You can make additional copies if you need them.
You might pay a filing fee while filing a restraining order request. However, if the claim is based on threats of violence, violence, or stalking from the alleged abuser, you probably will not have to pay a fee. You can ask for a fee waiver if you cannot pay the fee. Non- English speakers can request an interpreter or bring someone to interpret on their behalf.
Distribute the Copies of the Restraining Order
Once you have completed the filling process, you should proceed to distribute them to the alleged abuser. Keep one copy with you and have it always. You may need to show it to the local police. Keep the other copy in a safe place while the others should be given to anyone else you intend to protect. You can also leave a copy at your children's school and with your apartment and your workplace's security officer.
Step 3: Service of Process
Under California laws, the abuser must be given a formal notice showing that you have filed for a restraining order against him or her. The judge cannot make judgment or long-term orders unless the abuser has been personally served with copies of the forms.
You cannot serve the forms to the abuser, but you can give them to anyone above 18 years and is not involved in the case, such as the county sheriff, professional process server, a relative, or a friend. Whoever serves the forms should provide an easy-to-read copy and a blank Answer to Temporary Restraining Order form (labeled DV-120) provided by the court.
You will also have to fill out a Proof of Service Form (labeled DV-140) to let the judge know that the abuser got the forms. Please fill out your part and give it to the server to serve it to the abuser and other forms.
Step 4: Waiting for a Response From the Abuser
The abuser should know about the restraining order filed against him or her and respond to what you say in the paper. In most cases, the court only allows you to serve the order five days before the hearing. However, you might request more time to serve the abuser by filing the part marked "order shortening time for service" in the Application Order.
The abuser (generally referred to as respondent by the court) will have 2 to 10 days to file his or her form, answering what you have highlighted in the forms. This form is referred to as the Responsive Declaration to Order to Show Cause (Form DV-120).
Suppose you cannot serve the order within the expected time, you should file a Reissue Temporary Restraining Order form (Form DV-125) to tell the court that the order cannot be served on time and explain why. The form asks the court for more time of service and asks the judge to extend the order until the new hearing date.
Step 5: Getting Ready and Attending the Court Hearing
You must attend a court hearing and prove that the abuser has committed the domestic violence acts highlighted by your form. You can request for a "continuance" and have the court set a later court date if you cannot find a lawyer on time. Either party may request a continuance of the hearing based on the circumstances surrounding their case.
Remember to carry some of the documents that can help in your case. This includes the police report, medical report, photos, a threatening message, mail or letter, and damaged property. You should also hire an attorney to increase your chances of winning your case.
Find a Restraining Order Attorney Near Me
Filing a restraining order seems easy, but it can be complicated. You cannot handle every process involved unless you hire a Restraining order attorney. At the San Diego Divorce Attorney, we will tenaciously fight for your rights and help maneuver the restraining order filing process to have a successful outcome. Contact us today at 858-529-5150 for a free and non-obligatory consultation.