Restraining orders are used to resolve a wide range of disputes, relating from managing domestic violence problems in the home to property disputes about an ongoing public nuisance. Our lawyers handle more restraining order matters than any other law firm in Los Angeles. Unlike other lawyers who occasionally handle restraining order matters, our lawyers regularly defend respondents and seek orders on behalf of petitioners in all Los Angeles courts.
Depending on the jurisdiction and the circumstances giving rise to the necessity of a restraining order, the order can be granted by both a civil or criminal court (orders issued in criminal courts are sometimes called protective orders). Restraining orders give rise to countless issues specific to each individual case. While every case is different, some issues that arise regularly in restraining order matters are discussed in detail, below:
- Restraining Order Issues
- Types of Civil Restraining Orders
- The Restraining Order Process
- Restraining Order Conditions
- Domestic Violence Restraining Orders
- Restraining Order Service
- Restraining Order Fees
- Restraining Order Penalties
- Restraining Order Violation Defenses
What Kind of Restraining Orders Can be Requested in Los Angeles?
In Los Angeles (and throughout California), there are five types of restraining orders that can be requested
Restraining orders or injunctions intended to protect property will be issued by a civil court. Restraining orders or protective orders intended to protect persons will sometimes be granted by a judge in a family law court setting, while in some states these orders can also be granted by a civil court.
The most frequent driving factor for why restraining orders, intended to protect persons, are sought have to do with continued or threatened harassment, stalking, or domestic violence against an individual. Domestic violence restraining order laws exist in every state in some form, and most states also have civil restraining order laws for stalking, harassment and/or sexual assault. Victims of domestic violence may require both a restraining order and a protective order, if applicable in the state.
The party requesting the restraining order in a civil court is referred to as the Petitioner, while the party against whom the restraining order is sought is referred to as the Respondent. If the restraining order, or protective order, is sought in connection with physical abuse, sexual abuse, harassment, stalking, threats, and/or domestic violence, the person requesting the restraining order is often referred to as the “protected person,” while the person the restraining order is against is the “restrained person.” In some instances these restraining orders may include other “protected persons,” such as family or household members of the party requesting the restraining order.
In some situations, the violation of a restraining order granted by a civil court can lead to criminal consequences, such as arrest and criminal prosecution, for the violator. Along with any possible criminal consequences, there may be civil repercussions for the violation of a restraining order, such as fines, penalties, additional costs incurred by the requesting party, counseling, any firearms taken away or the inability to acquire new firearms. And in some states the violation of a restraining order can constitute either criminal or civil contempt of court. Contempt of court occurs when a party willfully fails to obey a court order.
If the person requesting the restraining order attempts to contact the restrained person, the restrained person must not participate in the communication if a valid restraining order has been issued, or he or she may risk violating the order. While the Petitioner’s contact with the Respondent will neither void nor nullify a valid restraining order, this scenario can make it more difficult for the Petitioner or law enforcement to prosecute any violations of the order by the Respondent, and it may make it more difficult for the Petitioner to get another Restraining Order against the same Respondent in the future.
What is a Default Civil Harassment Restraining Order in California?
If the Respondent does not appear at a restraining order hearing in California, the judge will review the request and supporting paperwork, and determine if there is enough evidence to grant a restraining order. The judge may also ask the party requesting the Restraining Order to testify under oath and under penalty of perjury, that everything in their request is true.
If the judge determines that the request is insufficient, the judge may require further testimony from the Petitioner and possibly additional witnesses even though the Respondent is not in court. If the judge is satisfied that the request and/or testimony is sufficient, a default restraining order is granted, the judge will fill out and sign the order (Form CH-130), and the Petitioner will have to serve that form on the respondent. Service can be done by a private process server, the sheriff, or any third party who is older than 18 years old and is not a party to the restraining order case. Once the Order has been served, the server must fill out, sign and file the Proof of Service (Form CH-200). The restraining order is not valid or enforceable until the Order has been served and the proof of service has been filed with the court.
Can I Reverse a Restraining Order Default?
In Los Angeles, and throughout California, default restraining orders are often granted because the Respondent has not been served, and therefore does not know when they need to appear, or even that a case has been filed against them. In such cases, a Petitioner files a false or incorrect proof of service with the court, and the judge has no way of knowing anything other than what the Petitioner is claiming – that the Respondent has been served and has not appeared. A Respondent who has not been served often finds out about the restraining order when they receive a copy of the actual order after hearing (Form CH-130).
At that point, the Respondent’s options are limited – the Respondent can either take no action and accept that there is a restraining order against them, or file a motion to set aside, or vacate, the order. A motion to vacate the order can be based on multiple factors, but the most common is lack of proper service. The motion must be properly formatted and include a summary of the case, and evidence (such as a declaration from the Respondent) showing that the Respondent was never served with the restraining order paperwork. The motion may be served on Petitioner by regular mail. The Petitioner must then provide evidence that service was proper.
If a Respondent filed a motion to vacate a restraining order, and the court grants the motion and sets the order aside, the court will start the restraining order case from the beginning – requiring that the Petitioner serve that paperwork on the Respondent, file a proof of service, and appear at a new hearing date to argue whether or not the restraining order should be granted.
What is the Restraining Order Process in Los Angeles?
No constitutional right for a jury trial exists for restraining or protective order cases. Further, most states, including California, do not provide a statutory right for jury trial in restraining order cases (some jurisdictions, including the federal system, do not allow for jury trials in some criminal misdemeanor cases). Instead, at a restraining order hearing in all Los Angeles courts, both parties will appear in front of a judge. The parties will typically be sworn in so that their testimonies will be given under oath. Each side will have a chance to show their evidence and to make their arguments. If an attorney is present for one or both sides, they will make the arguments before the court, and the parties may testify and may be cross-examined by the other party. After the arguments and evidence are heard, the judge will rule on the evidence in the same manner as would be used for a “bench trial.” Sometimes, a judge may take a ruling “under submission,” meaning he or she will issue a decision at a later time.
In some cases, restraining orders may be heard by a commissioner, or a temporary judge. A commissioner is typically an attorney who has been appointed, whereas judges are often elected and / or appointed. If the restraining order hearing is set to be heard by a commissioner, a stipulation waiving the individual’s right to have the restraining order case heard by a judge will need to be signed. This benefits litigants, as some jurisdictions do not give the petitioner or the respondent a choice regarding whether their matter will be heard by a judge or an appointed court officer.
Again, restraining orders, because they are not criminal convictions when issued, do not usually allow petitioners or respondents the option of having their case heard before a jury (a constitutional right to a jury trial only exists in criminal cases where the risk of a custodial sentence is present). However, individuals who feel that they have wrongly had a restraining order issued against them or have had a restraining order improperly denied against them usually, in most jurisdictions, have the option of appealing the ruling of the trial court (the court that issued or denied the restraining order). Restraining order appeals are often difficult to win, however, because appellate courts commonly give trial courts wide discretion when deciding issues of fact (i.e., who is telling the truth, what value to assign pieces of evidence, etc.). Appeals are generally considered valid and considered with scrutiny when they involve issues of law (i.e., what evidence is permitted to be admitted, what witnesses may testify, and any other issues involving questions of legal applications).
Los Angeles, and California in general, has five separate types of restraining orders that may be requested (as stated above, they are: civil harassment, domestic violence, elder abuse, workplace violence, and gun violence). These types of restraining orders are generally unrelated to injunctions in civil cases and protective orders issued in connection with a criminal case.
The Stanley Mosk Courthouse is located at 111 North Hill Street, in downtown Los Angeles. Any restraining order matter occurring anywhere in Los Angeles County can be filed and heard in this courthouse. Additionally, restraining orders concerning conduct that occurred in the following aread must be filed in this courthouse: Eagle Rock, Highland Park, Glassel Park, El Sereno, Lincoln Heights, Boyle Heights, East Los Angeles, Commerce, Montebello, Grammercy Park, Manchester Square, Vermont Knolls, Florence, Central-Alameda, South park, Vermont Square, Vermont-Slauson, Harvard Park, Chesterfield Square, Exposition Park, Adams-Normandie, University Park, Historic South Central, Hyde Park, Baldwin Hills/Crenshaw, West Adams, Leimert Park, Jefferson Park, Elysian Valley, Elysian Park, Chinatown, Echo Park, Silver Lake, Los Feliz, East Hollywood, Westlake, Chinatown, Downtown, Pico-Union, Koreatown, Hollywood, Arlington Heights, Harvard Heights, Windsor Square, Larchmont, Hancock Park, Hollywood, Hollywood Hills, Hollywood Hills West, Beverly Grove, Mid-City, and Carthay.
Restraining orders at the Stanley Mosk downtown Los Angeles courthouse are filed on the second floor of the courthouse, in room 245 between the hours of 8:30am-12:00pm and 1:30pm-3:30pm. If litigants require assistance with filing or responding to restraining orders, room 245 also contains a restraining order help center where court employees answer litigants’ questions regarding restraining orders and assist with filling out the proper paperwork. Although the help center employees cannot give legal advice, they can make sure that the proper type of restraining order is being requested, and the correct forms are being used. They can also explain how the forms should be filled out, and what type of documentation and evidence should be presented. Translations services are also available at the help center upon request. The restraining order help center is a great resource for those who are unable to afford an attorney, but still require the protections offered by a restraining order.
Once the restraining order paperwork is filed with the clerk in room 245, the clerk will request the filing party to wait for the judge to review their paperwork in order to select a hearing date and rule on the request for temporary restraining order. The Petitioner is sometimes called forward by the judge so that the judge can ask questions prior to ruling on the request for temporary restraining order. Usually, the questions will be about details regarding the allegations of restrainable conduct contained in the paperwork, and/or clarifications regarding the parties’ residences and relationship. The judge in room 245 will rule on the request for temporary restraining order on the same day that the paperwork is filed, as long as the paperwork is filed prior to 3:30pm. If the paperwork is filed in a timely fashion, the ruling will usually be made no later than 4:30pm.
Once the judge makes a decision regarding the temporary restraining order, the clerk will hand the Petitioner 3 copies of the paperwork, which will now contain the hearing date, time, and department. One copy is for the Petitioner’s records, one copy is to be served on Respondent, and one copy is for the Sheriff (if the temporary restraining order was issued). It is up to the Petitioner to provide a copy of the paperwork to the applicable police department for processing. Once submitted, the Respondent’s information will be entered into the CLETS system so that the police can arrest and prosecute in the event of a restraining order violation. The Petitioner can also choose to have the sheriff serve the documents on the Respondent for a fee. The request for restraining order can also be served by a private registered process server, or by any other third party who is not involved in the case and is over eighteen years of age. Once the documents are served, a proof of service must be filed with the court. If Petitioner is not able to locate or serve respondent by the hearing date, the Petitioner must come to court and request a continuance of the hearing so that the Respondent can be served.
More California Restraining Order Issues
Other common issues regarding restraining orders in Los Angeles and throughout California frequently come up. Many people have seen or heard about restraining orders on television or in movies and have commonly held misconceptions about them. For instance, many people confuse the five types of California restraining orders with injunctions (requests for immediate relief). Below are some common restraining order topics in Los Angeles and important information about those topics:
- Court Attendance in Restraining Orders;
- Re-issuance of Restraining Orders in Los Angeles;
- Restraining Order Hearings;
- Evidence in Restraining Order Cases;
- Can I Take the 5th Amendment?
- Is a Restraining Order a Crime?
- Are Juries Allowed in Restraining Order cases?
- Restraining Orders & Background Checks;
- Consequences of a Restraining Order;
- Restraining Order Mediation;
- Restraining Order Continuances;
- Restraining Orders & Business Disputes;
- Dueling Restraining Orders.
How Do I Request a Restraining Order in Los Angeles?
1) Requesting a Civil Harassment Restraining Order – a petitioner must pay the filing fee unless there is stalking, violence or a threat of violence. The following documents must be filed:
- Request for Civil Harassment Restraining Orders (Form CH-100);
- Confidential CLETS Information (Form CLETS-001);
- Items 1 and 2 on Notice of Court Hearing (Form CH-109);
- Items 1, 2 and 3 on Temporary Restraining Order (CLETS -TCH) (Form CH-110);
- Civil Case cover Sheet (Form CM-010) (only required by certain courts);
- Additional Page (Form MC-020) for more space; and
- Declaration (Form MC-030) or Attached Declaration (Form MC-031) for any statements of witnesses that will support your side of the story.
2) File Documents with Court.- If the Temporary Restraining Order is granted, the judge will sign CH-110. They judge may grant or deny the temporary restraining order.
3) Personally Serve The Person From Whom Protection Is Sought – have someone over the age of 18 and not a party to the case hand a copy of your Restraining Order Packet to the Respondent along with all accompanying documents AND BLANK copies of:
- Response to Request for Civil Harassment Restraining Orders (Form CH-120);
- Proof of Firearms Turned In or Sold (Form CH-800);
- How Can I Respond to a Request for Civil Harassment Restraining Orders?(Form CH-120-INFO);
- Must serve by deadline Judge writes on documents (item 5; pg 2 CH-109);
- File Proof of Service with Court (CH-200 Proof of Personal Service).
If the respondent was not served / not properly: Request to Continue Court Hearing and to Reissue Temporary Restraining Order(Form CH-115) – this form can be filed at the hearing if the Respondent was not served. The court may give you more time to attempt service.
Before a party requests a restraining order, they must make sure that the type of restraining order being requested is the appropriate type. is right for them. The individual requesting the order must make sure that the type of restraining order they are seeking is both available in the jurisdiction (here, California) and that they meet the requirements to get one.
If parties have questions about restraining orders or about any of the paperwork, there are often self help or legal aid resources available, especially when the restraining order being requested involves domestic violence. Many courthouses have family law facilitators and self-help centers that parties can take advantage of. Once a party is sure a restraining order is for them, these are the steps they will usually need to take in order to request a restraining order.
The party making the request, the Petitioner, will need to fill out the required paperwork if he or she does not have an attorney. The Petitioner must check with the local courthouse regarding what forms are required to be filled out. There may also be local paperwork that needs to be filled out. The Petitioner may want to go to the self-help center to make sure the forms are filled out correctly so the request is not denied unnecessarily. If there are other issues that need to be resolved, such as child custody or support, the self-help center and family law facilitators can sometimes help with that as well.
The Petitioner will need to make copies of the paperwork. One copy will be for them, one for the Respondent (the restrained person), and other copies for any other individuals that may be protected under the order. The original copy will go to the court.
The paperwork will then need to be given to the court clerk. The clerk will give the paperwork to the judge to review. The judge will decide whether to issue the temporary restraining order or not after reviewing the paperwork. The judge may also require the Petitioner to appear in court ,even a the temporary restraining order stage, to answer questions or to discuss the circumstances. Jurisdictions will have different timelines for when the judge will give a decision on the initial paperwork.
If the Petitioner will need a translator, interpreter, or other accommodation on the date of the hearing, the Petitioner should let the court clerk know as soon as possible.
The Petitioner should keep a copy of the restraining order at all times if it is granted, give a copy to anyone that might be protected under the order, keep a copy at locations where the Respondent is not allowed (if the Petitioner has any security guards where they reside, it would be beneficial to give them a copy as well).
Once a restraining order has been issued, it may be entered into an electronic database (depending on the jurisdiction) so that law enforcement officers statewide can access the order. Sometimes, the court will enter the information into a database.
Who Can Request a Restraining Order in Los Angeles?
Depending on the type of restraining order/protective order that is being sought and the laws of the state, the following are examples of individuals who are often permitted to request a restraining order/protective order:
- An adult who is the victim of harassment or abuse;
- An adult seeking protection of a child;
- A caretaker or one legally responsible for another child or adult;
- Any person on behalf of an elderly individual;
- Any person on behalf of a disabled individual;
- A court with jurisdiction over an individual; and
- Law enforcement officers.
Petitioners often seek information regarding whether children be included in a restraining order petition in Los Angeles and throughout California? Yes, children who are victims or potential victims of abuse can often be included in a restraining order. If the person the Petitioner is attempting to restrain happens to be a parent of the child, there may be additional paperwork and forms that must be filled out. Otherwise, the names of the children will sometimes only need to be included under the “Protected Persons” section of the Petition if the jurisdiction allows additional protectees.
What are Common Civil Harassment Restraining Order Issues?
Civil harassment: this is the second most common type of restraining order requested and granted in Los Angeles County courts and throughout California and acts as the “catchall” for restraining orders when another kind is not appropriate. Unlike other types of restraining orders, there does not need to be a qualifying relationship between the petitioner (the individual seeking protection) and the respondent (the person against whom protection is sought), although the two sides may have some kind of pre-existing relationship.
For a civil harassment restraining order to be granted in Los Angeles, there must be evidence of harassment, which is defined as, “unlawful violence, a credible threat of violence, or a knowing and willful course of conduct [defined below] 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 such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress…”
A “credible threat of violence” is a willful and knowing statement or course of conduct (defined below) that would place a reasonable person in fear for the safety of his or her family or for his or her own personal safety. Further, the threat must serve no legitimate purpose (such as self defense in response to a real threat of violence).
Further, California law, which is used in every Los Angeles retraining order courtroom, defines a “course of conduct” as 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, fax, or computer e-mail.”
Despite the definition outlined above, conduct that is “constitutionally protected” does not fall within the meaning of “course of conduct.” For example, while following someone would normally establish a sufficient “course of conduct” for a restraining order to be granted, news media who are following a politician’s campaign (and therefore his or her campaign staff as well as a candidate) are not engaging in an unlawful “course of conduct” as following a political candidate for the purposes of reporting to the public is a constitutionally protected activity (freedom of the press).
How Long do Restraining Order Last in Los Angeles?
Despite the misleading name, a permanent restraining order is not permanent. In some jurisdictions, a judge can make an exception in certain circumstances and grant a restraining order with no end date if the judge believes it is absolutely necessary to maintain the Petitioner’s safety. Otherwise the expiration date for the restraining order will typically be listed on the restraining order. In California,restraining orders can last anywhere from hours to months to up to five years (not all four types). Most restraining orders in California are issued for one or three years.
Temporary restraining orders and protective orders are shorter – sometimes days until a court appearance or sometimes a period of months. Protective orders in California can last up to three weeks,and are usually issued for shorter terms, as they require no court approval. Temporary restraining orders while a hearing on a permanent restraining order is pending can last 21-25 days, with an automatic continuance granted for an additional 21-25 days upon the request of any respondent.
The length of the restraining order will be determined by the judge depending on the seriousness of the situation, statutory limitations, and the need for the restraining order. If a Petitioner believes he or she is still in need of a restraining order due to continued abuse or threats of abuse, the Petitioner may apply for a new order or can, in some places, ask the court to renew the restraining order before the expiration of the current order (and sometimes, without alleging additional facts that would support an order). This type of order is not available in civil harassment cases but is always available in domestic violence restraining order matters.
What Kind of Evidence is Required in Restraining Order Cases?
When seeking a restraining order it is important to make a list of all of the incidents, documenting them as much as possible, a list of all continuing abuse, threatened harm, and/or intimidating behaviors exhibited by the person the restraining order is sought against. If the Petitioner has any evidence such as photos, texts, and/or witnesses, it would be important to gather all of this to either submit with the initial paperwork if it is available, or to bring to the court hearing to determine if a permanent restraining order should be granted. The purpose behind the gathering of evidence is so that the court can see as many of the relevant facts as possible in order to make a decision regarding the restraining order.
Each side has the opportunity to question the other side’s witnesses (cross examination) and to introduce evidence or rebuttal witnesses to counter the other party’s evidence. Judges will sometimes limit the amount of evidence that can be introduced for the sake of expediency when he or she feels that additional evidence will not assist in making a decision. Other evidence, such as hearsay testimony or documentary evidence that cannot be properly authenticated are also often excluded from being introduced as evidence. Because courts typically have large calendars and many cases to decide, concise presentations of evidence are always preferred.
Courts also prefer when parties only attempt to introduce relevant evidence in a restraining order case. Sometimes, however, it can be difficult to determine what is and is not relevant because restraining orders often involve a pattern of conduct over a long period of time and incidents prior to the most recent can be important to a court’s decision. What is critical is not to attempt to introduce evidence that has been excluded or that has been introduced previously.
Dueling restraining orders (where each side is the petitioner and the respondent in two proceedings) can also lead to problems with evidence, in that the same evidence may be introduced in two separate proceedings. Courts in some jurisdictions will often try to consolidate the matters, not into one case, but onto the same calendar so they may be heard simultaneously. This tactic allows evidence to be taken in just once, while both hearings are held at the same time or one after another (where limited or no repetition of testimony occurs). Courts not only save time in handling dueling restraining orders this way; it creates a more equitable result where the same fact-finder (instead of multiple fact-finders) can evaluate all evidence and make a global determination of which restraining order conditions should be imposed, an onto whom.
The filing of restraining orders where one side is attempting to provide evidence in order to gain an advantage in a business dispute is also sometimes attempted and is frowned upon by courts. While restraining orders or other temporary relief are often available in business disputes, restraining orders based on harassment or domestic violence are fundamentally different than injunctions designed to prevent irreparable monetary harm in the context of a dispute over money. When courts who deal with harassment issues and are not involved in a business dispute see a request for a restraining order without any domestic violence or actual harassment (via phone, electronic communication, in person, or any other kind of harassment), they often deny the motion and inform the parties that the best method of resolving the request is via an injunction in a civil action (a lawsuit). Further, if there is already a civil case in progress and one side is simply attempting to gain an advantage by filing another case (here a restraining order case), restraining order courts will often defer to the civil court hearing the initial matter and send the parties back. In addition, many restraining order request forms require the parties to disclose if there are any “related” matters in progress or that have been decided in the past between the parties.
What is the Standard of Proof in Restraining Order Cases?
In California, civil harassment restraining orders require “clear and convincing” evidence. To prove something by clear and convincing evidence requires the individual putting on the evidence to show that it is substantially more likely than not that what they are trying to prove is true.
The standard discussed above is higher than the level of proof than most lawsuits over money require (where the standard of proof is “preponderance” of the evidence or 51% in one side’s favor) and a lower standard of proof than “beyond a reasonable doubt” used to convict defendants in criminal cases.
In domestic violence restraining order cases, the “preponderance” of the evidence standard is used (this is the only type of restraining order that uses the lowest standard of proof). For non-domestic requests, the petitioner must prove harassment or violence by clear and convincing evidence.
California does not an inverse standard of proof and due process. What this means, in other states, is that after the court issues a temporary restraining order, often in the form of an ex parte restraining order, where only one party is present at the time the original order is requested. In these jurisdictions, the burden of proof is on the respondent to prove that a restraining order and / or protective order should not have been issued against them and why the temporary restraining order should not be made permanent. Respondents have to prove their own innocence, where standard procedure is for the Petitioner to prove his or her case in court (this is permitted, again, because being issued a restraining order is not the same as being convicted of a crime).
What are the Possible Restraining Order Hearing Outcomes?
There are several possible outcomes in a Restraining order hearing:
- The case can be dismissed because both parties have failed to show up;
- The case can be dismissed if the Respondent shows up to the hearing and the Petitioner does not;
- Parties can request a continuance (Respondents are entitled to one continuance by statute);
- Both parties are present and ready to go through with the hearing. The judge could decide to issue a permanent restraining order based on the evidence and arguments given;
- Both parties are present and ready to go through with the hearing. The judge could decide to dismiss the case based on the given facts and circumstances, as it may not be enough to grant a permanent restraining order;
- Both parties can agree to a mutual stay away agreement. This is where both parties agree to have no further contact with each other;
- Both parties can go to mediation, if a mediator is available, on the date of the hearing and try to settle the case;
- If there are minor children, both parties might be required to go to mediation to try and figure out custody and visitation issues involving the minor children. After mediation the judge may go through with the hearing;
- If the Respondent has been personally served and does not show up on the date of the hearing, whether it is because they choose not to show up or because they are unable to show up, the judge may grant the Petitioner a permanent restraining order based on their initial paperwork and their testimony or may deny the request for a restraining order.
These outcomes often differ depending on the jurisdiction and state in which the restraining order case is being heard.
What are Typical Restraining Order Conditions?
A restraining order can contain many different provisions that can prohibit and/or force the restrained party to take certain actions. Whether or not the judge will approve of certain provisions in an individual’s restraining order will be determined on a case-by-case basis. Below are some types of provisions that may be available for individual’s seeking a restraining order.
- Cease Abuse: The judge can order the restrained person to stop attacking, hurting, and/or threatening the victim;
- Counseling: The judge can order the restrained person to attend counseling classes, such as batterer’s intervention, anger management classes, and drug and alcohol counseling;
- Custody, Visitation and Child Support: If the restraining order includes children, the judge can order the restrained party to stay away from the child’s home, school, doctor daycare, and/or after-school job. Some courts can also issue child support orders as part of the restraining order. The judge may also be able to arrange for supervised visitation and/or a special arrangement that makes for the safe transfer of children between the victim and the restrained party if they are allowed visitation and split custody of the children. These orders are generally temporary and can be modified by a family court at a later time;
- Exclusive Use: The judge can order the victim sole use of a residence and/or car that is owned by both the victim and the restrained person;
- Firearms: California a provision requiring the restrained person to surrender any guns that they possess and the judge can prohibit the restrained person from buying new firearms, or the judge can limit the respondent’s ability to handle firearms;
- Move Out: The judge can order the restrained person to move out from the residence shared with the victim;
- No Contact: The judge can order the restrained person to cease communications with the victim. The restrained party will be prohibited from calling, disturbing, emailing, stalking, and texting the victim;
- Peaceful Contact: The judge may allow for peaceful contact between the victim and the restrained party for limited reasons. The provision often centers around the need for communications between parties who share children and are dividing up child care and custody;
- Stay Away: The judge can order the restrained party to stay a certain distance away from the victim. The distance, be it feet or yards, is determined by the laws of the state, the judge, and the circumstances surrounding the need for the restraining order. The order can include places such as the victim’s residence, work, school, and car.
How is a Restraining Order Served?
A judicial summons is a document that is served on a person that is the subject of a legal proceeding. In restraining order cases, the summons is often required to be personally served. In a restraining order case, the summons is typically a document that tells the respondent that there is a restraining order that has been filed or will be filed against them, and that they are or may be required to attend a hearing on a future date. The summons also asserts the power of the court to hear and adjudicate the restraining order.
If a respondent does not attend a scheduled hearing after being properly served, the court may, in some instances, grant the petitioner a permanent restraining order based on the petitioner’s testimony (and other evidence) alone. This procedure will vary from court to court, and will also depend on whether the judge finds the petitioner’s testimony compelling enough to grant a permanent restraining order.
The purpose of serving the opposing party with court documents is to give them appropriate notice of the legal action that is taking place. The Petitioner will need to have all documents that have been filed with the court served on the Respondent. This is called the “service of process,” and the requirements for proper service will vary depending on the laws of the state and jurisdiction. There are generally three ways to serve the Respondent for a Restraining order that is requested in a civil court:
Service by a third party that is over the age of 18, is not a party to the action, and is not protected by the action. This can, depending on the jurisdiction, be friends or family of the party wishing to serve documents;
Service by law enforcement is another option that may be available. This service, if available, will usually be free. The Petitioner will need to contact the police or sheriff and give them all the documents as well as where to find the Respondent in order to serve them; and
Service by a Private Process Server is an additional option. These are private companies that can be hired to serve the Respondent the court documents. Process servers charge a fee but are often very experienced and efficient.
As discussed above, because a restraining order is a personal order against an individual, most, if not all states, require personal service of the Respondent. Personal service just means that the court documents and the summons have to be handed directly to the person listed on the document, in this case, the Respondent.
For restraining order cases, the proof of service is an official affidavit that is signed under oath by the third party that has properly served the Respondent with the legal documents. The party that is serving the Respondent is attesting to the fact that he or she personally served the documents as stated in the proof of service. Once the proof of service is completed, it typically must be filed with the court after the Respondent has been successfully served.
If the Sheriff is serving the Respondent, they will often file a copy of the proof of service with the court. If the Petitioner is using a private process server to serve the Respondent, they will also often file a copy with the court.
If a friend or family member is serving the Respondent, they must fill out the appropriate proof of service, which is available in a form format either online or at the local courthouse. If parties do not have a standardized proof of service form, which is available at most courthouses, a proof of service can be written or typed out as long as it contains the required information. If the Petitioner does not file a proof of service, the court may refuse to hear the Petitioner’s case.
If the Petitioner does not have a copy of the proof of service, or it is not easily accessible on the day of the hearing, the Petitioner may ask for a continuance based on good cause. The court may or may not issue the continuance for a future hearing date.
While proof of service forms will differ for the jurisdiction and the type of case being filed, it will usually contain the following information:
- The name of the court where the action has been filed;
- Case name;
- Case number;
- The name of the person that was served with the legal documents;
- A list of the documents served;
- Date of service;
- Time service was made;
- The name of the individual who served the documents;
- The location where the documents were served; and
- Whether the documents were served personally or by mail (restraining orders often need to be.
What are the Court Fees to File a Restraining Order?
In states that allow individuals to file for civil harassment restraining orders or civil protection orders, the Petitioner will most likely need to pay a fee to file the civil complaint. The fee will vary depending on the jurisdiction.
If the Petitioner is unable to pay the fee because they are indigent, they may be able to request a fee waiver, which can also be called a Motion to File without Payment of Filing Fee in some jurisdictions. The local courthouse will have the appropriate forms that will need to be filled out. It is up to the court whether or not to grant the fee waiver.
The court may also waive the fee if the person against whom the restraining order is sought has used or threatened to use violence against the Petitioner, or the person has stalked the Petitioner, or has acted towards or spoken to the Petitioner in a particular way that makes the Petitioner have a reasonable fear that the person will use violence against them.
The Petitioner may also be able to get the local sheriff or marshals to serve the Petitioner for free if they qualify, or if the person against whom the restraining order is sought has used unlawful violence against the Petitioner, or has made a credible threat of violence or has stalked the Petitioner.
How Can I Defend a Restraining Order?
You must appear in court at the time and place listed on Form CH-109. If you need more time to prepare your case, or to hire an attorney, you are entitled to one delay, or continuance, of the case. In order to request the continuance, you still need to appear at the hearing. The Court will give you a new hearing date and reissue the Temporary Restraining Order until the new hearing.
Bring copies of all the paperwork you received from the other side and everything you filed with the court to the hearing. Dress professionally, be polite, speak slowly, and do not interrupt the judge or the other side. Despite the fact that it is difficult to hear the other side making false allegations against you, remain calm and professional. Otherwise, you run the risk of appearing aggressive to the judge and hurting your defense. Also, be extremely careful not to admit to any crimes under oath, because such admissions can lead to later criminal prosecution.
Everyone should avoid any incriminating statements during the restraining order hearing is obviously made easier with the assistance of qualified counsel and is made even more difficult when you are not represented while the petitioner is. This can make avoiding damaging testimony even harder, as you are attempting to avoid damaging your case while dealing with questions designed to place you in legal danger.
Remember, under the fifth amendment to the U.S. Constitution, you have the right to not say anything that will incriminate you. Your right to remain silent can impact your ability to testify about other issues or testify altogether in a restraining order case. A judge may allow you to testify to certain facts and assert your fifth amendment privilege with respect to other testimony. If he or she limits your testimony and basically refuses to allow you to testify to some things and assert your right to remain silent as to others, you will need to decide wither or not to testify at all. Again, losing a restraining order is not a criminal conviction, and the consequences are only that you will become eligible to be charged with a crime if you take certain steps. Therefore, it often makes practical sense to refuse to testify altogether and simply let a restraining order issue.
This choice can allow you to avoid being forced to make statements that could incriminate you for past conduct. Consequently, this is one of the reasons it is always beneficial to have an experienced restraining order attorney working for you. He or she can always properly advise you about your potential exposure in any criminal matter and can assist you in weighing whether or not to testify in a restraining order proceeding. Because these advantages of an attorney are in addition to him or her fighting the case itself and using his or her experience to defeat the restraining order application, it makes sense to have an experienced advocate fighting for you.
At the hearing, the judge will decide whether or not to issue a restraining order against you. The other side needs to prove their case by clear and convincing evidence. If there are any witnesses to any of the events that are the subject of the Petitioner’s Request or your response, you need to speak with the witnesses, and if their point of view is favorable to your defense, you should ask them to come to the hearing and testify on your behalf. If you have included witness statements with your Response, have those witnesses come to court with you, of possible.
What are Penalties for Violating a Restraining Order?
It should be noted initially that having a restraining order issued against someone is not the same as that person (the Respondent) suffering a criminal conviction. A restraining order is typically a civil order that imposes conditions on a person or persons, and a violation of any part of that order can constitute a crime and / or place the Respondent in contempt of court. While a restraining order is not a crime and is instead a civil or administrative action, some employers or others engaging in a background check of the petitioner may view the issuance of the restraining order negatively.
If the restrained person takes an action that the court has ordered them not to do or fails to take an action ordered by the court, the restrained person may have violated the order. Depending on the violation and local laws, the protected party may have the police, the court, or both enforce the order.
Usually, if the police are called for a violation, they can often take actions such as arresting the restrained person and/or removing them from the situation. The police are useful for violations that require an immediate response, such as violations of the stay away, no contact, cease abuse, exclusive use, and possibly any custody provisions that may be in place. If any of these violations occur, calling the police and making a report as soon as possible is ideal. Protected persons must take note of each occurrence and bring it to the court’s attention to show that the issue is still continuing.
Violations can result in criminal convictions in many jurisdictions. Some possible repercussions of violating a restraining order are:
- Community Service;
- Probationary conditions; and
- Jail Time.
- What happens to a violator will depend on the laws of the state, the seriousness of the violation, and whether the violator has committed repeated violations of the order.
Courts do not usually differentiate between a temporary and a permanent restraining order as long as it is official. The same repercussions listed above will commonly apply to any violation of a temporary restraining order.
Further, the protected person must keep in mind that they often do not have a say as to whether a penalty or a fine is applied to the restrained person. The protected party generally cannot choose to change their mind about pressing charges once criminal proceedings have begun.
What are Defenses to Violations of Restraining Orders?
The lack of knowledge of the existence of a restraining order can be a defense to an alleged restraining order violation. A restrained person may have no knowledge of a restraining order if he or she was not properly served. However, if service was effectuated properly and the restrained person simply ignored the order, did not understand the order, or did not comply with all terms of the order, no legal defense will exist if a violation occurs. Further, in almost all cases, if a restraining order was improperly issued (i.e., evidentiary mistakes by the court, etc.), the fact that the order was made and in existence will be sufficient for a violation to be alleged. If a restraining order was improperly issued, the best course of action is to request an appeal.