Restraining Orders
Filing or Defending Against a Restraining Order
A restraining order is an order from the court directing one person not to do something, such as strike, harass, follow, or even make contact with another person. Restraining orders are typically issued in an attempt to ensure the protected party's safety. Domestic abuse can be either actual or threatened, and a restraining order can be granted whether or not the victim is married to the alleged aggressor. Protective orders may be issued on an emergency basis or upon a noticed motion in an independent action commenced under the Domestic Violence Prevention Act (DVPA).
Both restraining orders and temporary restraining orders outline what contact (if any) is permitted by the person who has committed violence or threats against another person. A person seeking a DVPA order must fall into one of the categories described in Family Code §6211.
These categories are:
1) a spouse or former spouse
2) a “cohabitant” or former cohabitant
3) a person with whom the perpetrator is having or had a dating or engagement relationship (a casual or social relationship is not enough)
4) a person with whom the perpetrator has a child
5) a child of one of the involved parties
6) blood relatives
If a person does not fit into one of these categories, he or she must seek a Civil Harassment Order in Civil Court.
There are no filing fees for seeking a restraining order, and the San Diego County courthouses often offer domestic violence workshops to help victims complete and file the proper forms. Unfortunately, even with the assistance of these workshops, victims can still be denied relief based on a lack of evidence or failure to properly submit evidence before the court. This is why the assistance of a family law practice attorney is extremely important when seeking a DVPA order.
Restraining orders are classified into four categories:
1. Domestic Violence Temporary Restraining Order:
For a domestic violence victim, this type of restraining order is normally effective for a few weeks. Once a Temporary Restraining Order has been obtained, the court will set a date for the parties to return to court to make the Temporary Restraining Order a Permanent order, which can last for a maximum of 5 years in California.
2. Emergency Protective Order:
This type of restraining order provides immediate protection and safety when a threatening situation is clearly present. It is usually only valid for a few days, which is generally long enough to give the victim time to go to court and obtain a more permanent order.
3. Civil Harassment Restraining Order:
A Civil Harassment Restraining Order is designed to stop harassment, threats, or stalking, whether it's from roommates, co-workers, neighbors, or the boyfriend/girlfriend of an ex-spouse or partner.
4. Criminal Protective Order:
Criminal Protective Orders are issued in active domestic violence cases. They're obtained through the criminal court system instead of the family law courts, and they involve the District Attorney.
Facing a Restraining Order
Due to the relative ease with which a temporary restraining order can be obtained, it's not unusual for an angry ex-spouse, boyfriend or girlfriend to use them as a tool to limit a parent’s access to his/her child(ren) or generally to make someone's life difficult. Since they can be issued without notice to the other party (in certain circumstances), they can cause substantial disruption to your life. Not only may you be unaware it's been issued, once it's in effect you are required to turn in all firearms and you can be arrested if you are alleged to have violated the restraining order. As a result, a temporary restraining order has the potential to turn into a serious criminal charge and create further problems - especially when child custody, child support or visitation are involved.
Defense of Persons Accused of Domestic Violence
In divorce and child custody disputes, one party may use a false accusation of domestic violence in order to gain an advantage. At Renkin & Associates, we take action in cases where a restraining order is clearly being used to complicate our client's life and leverage certain issues in a divorce or family law dispute, instead of for its true and intended purpose.
Contact Our Law Office About Restraining Orders & Temporary Restraining Orders
If you need to pursue a restraining order or defend against one, contact us to discuss the details of your situation. In matters of domestic violence, civil harassment, and restraining orders, we can help. Call (619) 299-7100 or send us an email.