TO GET ONE OR TO NOT GET ONE?
This is life, so hey, shit happens. You meet people that turn out to be a far cry from who you took them for and it's not your fault. If you're reading this article, I assume you're seriously considering getting a restraining order and chances are that it's not such a bad idea. I mean people in California buy flood insurance every day, so crazier things happen. PLUS, you may seriously be in dire need of one too in order to protect you or your children from someone who is potentially an abuser or stalker.
If you're still wondering if you should get one, ask yourself if this person has caused you either physical or mental harm, and most importantly if they could pose a possible threat to you in the future.
If you really do feel threatened and worry about the unexpected presence of an unwanted person in your life, it's best to get a restraining order just in case. If nothing else, it can provide you some needed piece of mind if matters ever escalate to where you might need the police to step in and assist you.
Also, it's good to know that if for some reason you are in dire need of a restraining order right away that temporary restraining orders can be issued if there is an urgent enough need for one.
1. GO ONLINE FOR INFO SPECIFIC TO YOUR LOCAL COURT:
Depending on where you live, local programs and jurisdiction can change, so you'll want to make sure that you're also following all the rules of filing for your particular county.
2. FIND OUT WHAT KIND OF RESTRAINING ORDER:
There are many different kinds of restraining orders and then a ton of associated paperwork you have to file in order to start the process of finally getting the added protection from the court that you need.
It is important to figure out what type you need and then be sure that after doing all your research, once you're down at the court house, to double check that the forms you are filing are indeed the correct ones.
Many times, because legal assistance is also used when filing such papers, if you do it yourself, the court clerk may not legally be able to tell you that you are filing the wrong documents and you'll have to start from square one weeks later because of a clerical error.
You can file for a Domestic Violence Restraining Order if you, or your minor child, have been victims of domestic violence from:
4. HOW DO I GET AN ORDER FOR PROTECTION?
Go to the courthouse:
➜ in the county where you live, or
➜ in the county where the abuser lives, or
➜ in the county where the abuse happened, or
➜ in the county where you and the abuser had other family court cases.
➜ Ask the court clerk for a “Request for Domestic Violence Restraining Order” form. Fill out the form. Detailed instructions are available and the court staff or an advocate (a non-lawyer helper) may help you file a Petition (that tells the court what you want) and an Affidavit (that tells the court what happened).
➜ If you need immediate protection because you believe you are in danger, ask for an Emergency (Ex Parte) Order. This is an order signed the same day you apply, before the abuser knows about the action. An Emergency (Ex Parte) Order will give you immediate protection once it is served on the abuser until there is a hearing.
➜ There are no fees for a Domestic Violence Restraining Order.
➜ YOU DO NOT HAVE TO HAVE A LAWYER. However, you may wish to have a lawyer, especially if your abuser has a lawyer.
➜ In most cases, the court will set a hearing date for no more than 14 days after you apply for a Domestic Violence Restraining Order; seven days if you have received an Emergency (Ex Parte) Domestic Violence Restraining Order. The law gives you the option of obtaining a Domestic Violence Restraining Order without ever having a hearing. See --- ➜ below for more information on this option.
When you go to the courtroom, it is helpful to bring with you:
➜ a picture of the abuser, if you have one;
➜ the abuser’s home address and work address;
➜ written notes describing the abuse and when it happened; and
➜ any pictures, police reports, or medical reports related to the abuse.
(You may want to call the courthouse first to see if you need an appointment or to get instructions.)
5. WHAT CAN THE ORDER FOR PROTECTION INCLUDE? WHAT CAN I ASK THE COURT TO DO?
The court can make any of the following orders based on what you request in the Petition:
After the Petition is personally served on the abuser, the abuser has five days to ask for a hearing. After the abuser is served, you should check with the court on a daily basis to see if a hearing has been requested by the abuser. The court will send you a notice of the hearing date and time.
If no hearing is requested, the judge may issue the Order For Protection with you not having to go to court. The Order will say how long it lasts. Usually the Order For Protection lasts for one year.
6. HOW DOES THE ABUSER FIND OUT ABOUT THE HEARING OR ABOUT THE ORDER?
If you know where to find the abuser, the Petition and any Emergency (Ex Parte) Order must be personally handed to (served on) the abuser. This is done by the Sheriff. There is no cost to you for the service. Your county may require that you fill out a “fee waiver application” in order to have the sheriff serve the order for free. If you hire a professional process server to serve your abuser, you must pay for that separately.
What if I don’t know where the abuser is, or if the abuser is hiding or can’t be found? There are special ways to serve people who can’t be found. The court can order service in other ways, such as mailing the papers to an address where the abuser might get mail. The court can also order service by publishing the Petition in a newspaper’s legal notice section or in a special legal newspaper. The court clerk or advocate will help you fill out special forms. You should check with the court no later than 14 days after you filed the Domestic Violence Restraining Order to find out if the abuser has been served and to find out if you must fill out any special forms.
7. WHAT HAPPENS AT THE HEARING?
You must show up at the hearing! If you don’t, any Emergency (Ex Parte) Order you have will be dismissed. If the abuser was served with the Petition and Emergency (Ex Parte) Order and does not show up for the court hearing, the judge will review your requests and usually will give you the Order For Protection you have requested. At the hearing, you will tell the judge what happened. You may bring witnesses. You are not required to present evidence other than your own testimony. But, it usually helps to bring police reports or medical records, and any photographs of injuries, as well as witnesses who saw the abuse or your injuries or heard you or the children being abused or threatened. [NOTE: You may not be able to use written reports, affidavits, or statements from persons who are not at the hearing as witnesses.] The abuser also has a chance to tell the court his or her side of the story. The judge may ask questions, and you and the abuser may be allowed to ask each other questions. The judge will usually make a decision right away about whether to issue an Order For Protection.You may have an advocate with you. You may also have a lawyer, but YOU DO NOT HAVE TO HAVE A LAWYER.
Sometimes the abuser will also file a Petition for an Order For Protection, claiming that you have abused him/her as well. The judge may choose to hear both Petitions at the same time and decide who should get an Order For Protection. If the abuser has not filed a Petition against you, a judge will not issue a “Mutual Order For Protection” (an order against both you and the abuser).
8. WHAT HAPPENS AFTER THE HEARING? HOW LONG AM I PROTECTED?
The Domestic Violence Restraining Order will describe your rights. Read it carefully. The judge may order different things than what you asked for. If you are confused about what the judge has ordered, you can ask for a copy of the “minute order,” which is usually available from the court clerk a few days after the hearing. The minute order is what the court clerk writes down as the order the judge made at the hearing. You can also purchase a copy of the transcript from the court reporter, which will include everything that was said during the hearing. (The transcript can be very expensive, so ask for an estimate before requesting one.)Emergency Protective Order If a police officer responds to a domestic violence call, the police officer can call a judge (anytime, day or night) and ask for an emergency protective order, which goes into effect immediately.
An emergency protective order can last only five business days or seven calendar days (whichever is shorter). It is supposed to give you time to go to court to ask for a Domestic Violence Restraining Order, which lasts longer. The emergency protective order can make the other person leave the home, stay away from you, and not see your children, at least on a temporary basis.
9. TEMPORARY (EX PARTE) RESTRAINING ORDER:
When you go to court to apply for a restraining order, the clerk will give you a date, usually within three weeks, when you will have to come back to court for a full hearing.
If you are in immediate danger and need protection right away, you can ask for a Temporary (ex parte) Restraining Order, which will last for up to 15 days, or until you have your full-court hearing, which is usually three weeks. You can get this temporary order “ex parte”, which means you can get it without your abuser being there.
10. RESTRAINING ORDER AFTER HEARING:
After having a court hearing, a judge can grant you a Restraining Order After Hearing that can last up to five years. This order is designed to keep your abuser from threatening, harassing, or abusing you.
You can ask the court later to have the order extended for another five years, or permanently. The court can make this extension if it believes you have a “reasonable” fear that your abuser will threaten, harass, or abuse you again once the first restraining order expires. Note: There do not need to be new incidences of abuse in order to get the order extended.
A copy of the Order For Protection will be sent to the local sheriff’s department and to police departments by the court clerk. KEEP A COPY OF THE ORDER WITH YOU AT ALL TIMES.
11. WHAT HAPPENS IF I HAVE AN ORDER AND THE ABUSER VIOLATES IT?
If the abuser threatens, harasses, or contacts you or the children, or comes to your house or apartment or place of employment, it is a violation of the Domestic Violence Restraining Order. If the abuser disobeys the Order, you should call the police or sheriff right away. The police do not need to see the assault or threat, but they do need to see a copy of the Order. The abuser can be put in jail for up to 90 days and be ordered to pay a fine of up to $700.00 for violating the Domestic Violence Restraining Order. Even if you invited the abuser into your home, the abuser may still be guilty for violating the Order. Some repeat violations are gross misdemeanors which may result in a sentence of up to one year in jail and/or a $3,000.00 fine. Other violations are felonies which may result in a sentence of imprisonment of up to ten years and/or a fine of $20,000.00.You can also ask the court to enforce the Order. You must file a form with the court describing what the abuser did that was in violation of the Order. You can also use this form if the abuser doesn’t pay child support, doesn’t follow the custody or visitation order, or fails to go to counseling. The judge can order the abuser to appear in court for a hearing. Both you and the abuser can testify. If the judge decides that the abuser violated the Order, the abuser can be punished.
12. DO I HAVE TO HAVE A COURT HEARING TO GET AN ORDER FOR PROTECTION?
The law gives you a choice whether or not to ask for a court hearing. If you don’t ask for a hearing, the abuser still has the right to have a hearing, or a judge may order a hearing.If you don’t ask for a hearing, you can only ask the court for four things:
13. HOW DO I CHANGE, EXTEND, OR DISMISS AN ORDER FOR PROTECTION?
Contact the court clerk or advocate in the county where you requested your Order and explain that you wish to change, extend, or dismiss your Domestic Violence Restraining Order. Most courts require you to complete a form requesting the change and to appear in court again. The abuser may also have to appear in court.It is important to have your Order dismissed by a judge if you and the abuser wish to live together again or have contact. If you wish to extend your Domestic Violence Restraining Order, you must contact the court clerk one or two months before the Order expires and complete paperwork explaining why you continue to need the Domestic Violence Restraining Order. A judge will consider extending your Order if the abuser:
For more detailed information on how to obtain a Domestic Violence Restraining Order in the State of California (including the appropriate forms to fill out) visit the following the website:http://www.womenslaw.org/CA/CAhowto.htm#19.
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