What is a Domestic Violence Restraining Order?
A domestic violence restraining order (sometimes referred to as a domestic violence protective order) is a court order aimed at protecting an individual from abuse, or treats of abuse, from someone they have a close personal relationship with. A protective order can function as a powerful legal tool to curb domestic violence, however it can also seriously burden the restrained person. Therefore, courts here in Rancho Cucamonga (and throughout California) can only issue domestic violence restraining orders
if very specific requirements are met.
Domestic Violence Restraining Order Requirements in California
Under California law, the court can only issue a domestic violence restraining order if:
- The petitioner (i.e. the person requesting the protective order) has been abused, or was threatened with abuse, by the named respondent (i.e. the potentially restrained person), AND
- The petitioner and the respondent share one of the following personal relationships:
- Spouses (or registered domestic partners),
- Divorced or separated spouses,
- Closely related family members,
- Romantic partners who live together (or used to live together),
- Boyfriends/girlfriends who are dating (or used to date), or
- Parents of a shared child.
As you can see, domestic violence restraining orders can only be issued under limited circumstances in California. However, be aware that petitioners who do not qualify for a domestic violence restraining order may qualify for a different type of protective order such as a civil harassment restraining order, elder or dependent adult abuse restraining order, or a workplace violence restraining order.
What Qualifies as Domestic Abuse?
As noted above, California courts will only issue a domestic violence restraining order if there has been abuse or the threat of abuse. But what does this mean exactly? What constitutes abuse? These questions can be a bit complicated to answer, but suffice it to say that in the eyes of the law abuse is:
- Physically hurting or trying to physically hurt someone,
- Sexually assaulting someone,
- Causing someone to reasonably fear that they (or someone else) are about to be seriously hurt,
- Destroying someone’s personal property,
- Disturbing someone’s peace,
- Harassing someone,
- Stalking someone, or
- Threatening someone.
As you can see, the legal definition of abuse extends well beyond acts of physical violence alone. Therefore, local courts have been known to issue protective orders based not only on instances of physical abuse but on verbal, emotional, and psychological abuse as well.
What Can a Restraining Order Do?
The circumstances surrounding each restraining order petition are unique, therefore the court tries to tailor each protective order to suit the needs of the particular petitioner the order is designed to protect. However, the California court’s website notes that a CA protective order can require the restrained person to:
- Stay a certain distance away from the protected person, their children (or other relatives), individuals who live with them, their pets, their home, their work, and/or their children’s schools,
- Move out of their home,
- Forfeit the right to own a firearm,
- Pay child support and/or partner support,
- Return certain property,
- Pay certain bills,
- Not spend large amounts of money if doing so would affect the protected person’s property,
- Abide by visitation and child custody orders,
- Transfer a cell phone plan to the protected person,
- Refrain from changing insurance policies, and/or
- Take part in a batterer intervention program.
Clearly, the practical impact of having a restraining order issued against you can be quite severe. Once the order goes into effect you may not be able to go places that you usually frequent, you may be forced to move out of your home, you may no longer be allowed to see your children; the list goes on and on. Furthermore, if you are not an American citizen then having a restraining order issued against you may impact your immigration status and/or your ability to apply for citizenship in the future. For all of these reasons, and many more, you may want to consider fighting the order in court.
How To Fight a Restraining Order in Court
When someone in California wants to take out a domestic violence restraining order he/she must first file a petition with the court. That petition will be quickly reviewed by a judge (usually that same day) and a temporary restraining order (TRO) will be issued. The temporary restraining order will then be served on (i.e. given to) the restrained party and any restrictions contained in it will be in effect. For example, a TRO will usually prohibit the restrained person from contacting or coming close to the named protected person. The order will also specify where and when your hearing will take place. During this hearing you will have the opportunity to fight the restraining order.
In order to give yourself the best possible chance of victory when opposing a restraining order make sure that you take the following steps:
- Stay calm when you are served with the temporary restraining order. Even if you are outraged by the accusations levied against you now is not the time to lose your cool.
- Follow every order listed in the TRO exactly. If it says not to contact your ex-wife then do not contact her at all! It is critical that you abide by each and every restriction laid out in the temporary restraining order.
- Hire an attorney. Although you are legally allowed to represent yourself during a domestic violence restraining order hearing, doing so is likely not in your best interest as respondents in restraining order hearings often get their thoughts confused, fail to communicate their side of the story clearly, or lose their cool and greatly hurt their cases.
- Respond to the TRO in a timely manner and prepare for court. Your attorney will help you file a response with the court which will basically state your side of the story and address each allegation that was made against you in the TRO. Additionally, they will help you compile evidence that helps prove your case and develop a strategy for fighting your restraining order.
- Go to your hearing. Make sure to dress well, arrive on time, be polite, stay calm, and do what your attorney advises. This will give you the best chance of successfully defeating the restraining order that was filed against you.
Contact an Experienced Rancho Cucamonga Domestic Violance Attorney Today
Being served with a restraining order can be an extremely frustrating and stressful experience. You are probably upset, scared, and unsure how to best protect your legal rights. Rancho Cucamonga Defense Attorney Bobby Shamuilian of My Rights Law is here to help. Bobby has been defending California clients against domestic violence restraining orders and a wide variety of criminal charges for years and would be happy to put his experience to work for you. To schedule an initial consultation simply give our Rancho Cucamonga office a call today at (909) 340-2000.