What are restraining orders? Most people are aware that they can be issued to victims of domestic abuse, and that they can also be issued to people facing civil harassment. What you may not know is how to file restraining order, what the burden of proof, what rights are yours when the court grants you such an order, and if you should get a restraining order in the first place. What do you need to know about these orders?
The most common reason for restraining orders is when an abuser violates domestic violence laws. This can include harassment, assault, terroristic threats, burglary, lewdness, criminal trespass, stalking, kidnapping, criminal mischief, false imprisonment, or sexual assault. To meet the definition of domestic violence in California, the abuser must be a spouse, former spouse, live-in companion, boyfriend/girlfriend, or parent of your child.
The abused can visit the local county court to file the necessary forms. In California, those are DV-100 and DV-110 for domestic violence. You can get these forms online. You then give them to the court clerk, who passes them on to a judge. The judge decides if you have grounds for a protective order. The judge must make this decision within one business day.
You will have to return to court to see if your order has been granted; if it has, you will receive five copies of a temporary restraining order, which is valid for three weeks. Keep one with you at all times; the other copies are for individuals involved in the order. The next step is serving the abuser the order. Anyone except you that is over 18 can serve the order; check with law enforcement officials, though, because they may do it for free. After he/she has been served, fill out the “Proof of Service” form and make five copies of this as well.
You will be given a date and time for a hearing where you will receive a permanent restraining order. Bring all the forms you have filled out and supporting documentation, if you have it. An example might be a copy of a police report. As soon as the judge signs the order, the restraining order is in effect, though you do have to file it with the court clerk.
The order prohibits the abuser from coming within a certain distance of you, your home, your workplace, or your school. You can also request that your order prohibit contact via phone, email, etc. If the abuser is the primary breadwinner, you can request that the judge order him/her to continue paying mortgage, rent, or other bills, as well give you temporary full control over possessions like cars, computers, or tools. It is important to specifically ask about these conditions; if the judge approves, it will become part of the order.
Should you get a restraining order? Some experts say that because protective orders are given so “casually,” that they are not taken as seriously as they should be and protection is minimal. Other times, the orders are used as a strategic move in divorce or custody cases. If you are in fear or have been abused, it is best to talk to file for an order and talk to a lawyer. Protect yourself first and foremost.
A qualified lawyer can help you with issues ranging from domestic abuse and divorce to custody and fathers’ rights <insert link to article 7>. It is worth the investment in your future.