Also known as protective orders, restraining orders are put in place to protect people in danger. If you are afraid that someone plans to harm you, a restraining order will offer you security. However, you must provide sufficient evidence of your claims before the judge restricts your abuser. When pursuing a restraining order, the process of serving the order to the abuser is an important step that you cannot ignore. Properly serving the restraining order ensures that it is lawful, offering you the security you deserve. Sadly, most people do not understand the complexities involved in this procedure, which can result in dismissals or delays in their lawsuits. You should seek the services of a reputable attorney if you are pursuing a restraining order.

Understanding A Restraining Order

A restraining order is typically a civil court order that prevents an alleged abuser from harassing or harming the victim. The abused can also enforce a restraining order by requesting the court to hold the abuser in contempt of court. The police officers or other law enforcement agencies enforce restraining orders. An abuser can face an arrest, a jail term, or fines if he/she violates a restraining order.

A restraining order can do many things, including barring the abuser from calling the protected. The order requires the abuser to maintain a substantial distance from the abused. It can also keep the restrained person away from the victim's workplace and even a shared residence. A restraining order can also order an abuser to turn over any gun he/she has or undergo counseling. The court can grant a victim temporary physical and legal custody if the victim shares a minor with the abuser. The judge can order the restrained person to pay temporary alimony and child support if he/she supports the victim financially.

What A Victim Should Provide To Secure A Restraining Order

The specific elements the victim must prove to secure a restraining order include:

  • Proof that the victim is reasonably in fear of imminent physical violence
  • The victim is in an intimate relationship with your abuser
  • The presence of a threat of violence, further harassment, or abusive behavior
  • A specific incident or incident of harassment or abuse, like sexual assault by a spouse

A victim should be careful when preparing to file a request for a restraining order. Alleging specific facts of dating violence or domestic abuse is essential. For example, the victim can give the date, location, how the abuser hurt them, and whether any witnesses were around. The court can reject a petition if a victim just states that their partner abused them repeatedly.

The person seeking protection must also be detailed. The judge will not grant the request if the petition lacks a specific allegation. However, the law allows a victim to file a temporary restraining order immediately after the abuse happens. This will be enough evidence that the victim is in immediate danger and requires a protective order fast.

Courts have a form that an abused person can fill out. The victim should provide the following information on the form:

  • Contact information
  • Contact information of the alleged abuser and
  • The identity of any children together

Victims should consult domestic violence attorneys or a family law attorney, even if they are capable of filling out the form by themselves. For initial consultation, an attorney will not charge you too much.

The Evidence A Victim Should Provide To Secure A Restraining Order

The person seeking protection should present convincing evidence in court during the hearing for a restraining order. The evidence can be direct and circumstantial. Direct evidence proves a fact directly. For example, the victim can have witness testimony of a person who witnessed the abuser hitting them. The testimony of the eyewitness can prove the specific incident of harm.

On the other hand, circumstantial evidence is slightly different. It is convincing as direct evidence, but the victim should draw an inference to conclude that the incident happened. For example, you can enter a house and meet a person on the floor dead while another one is standing over them holding a gun. At this point, you can conclude that the one holding a gun is responsible for the death of the deceased.

Restraining order cases encompass a mix of circumstantial and direct evidence. One piece of evidence, like a police video or report, can be used to prove several elements. The victim has a duty to prove these elements by a preponderance of the evidence. Sometimes, a victim will be required to confirm that the elements exist by convincing and unmistakable evidence, a higher standard.

Proving Reasonable Fear Of Imminent Harm

If a victim alleges reasonable fear of imminent harm, he/she must provide sufficient evidence to prove that they are afraid. In this case, circumstantial evidence can come in handy. The victim can show the steps to keep themselves safe, such as changing the door locks and avoiding certain areas. Additionally, the law enforcement testimony or report will prove that the victim was afraid enough to call the police and had reasonable concerns. The documents and testimony that support the feeling of fear will help prove this element.

Proving The Threat Of Harm

It is easier to prove the threat of harm. If an abuser threatens a victim, the victim can allow the judge to listen to threatening voicemail messages or prove it. The person seeking protection can serve the judge with a copy of the written threats if the abuser threatened you in writing. Examples of writing include social media posts, direct messages, emails, and text messages. The case will be more convincing if the victim shows the judge the actual words the alleged abuser used to threaten them.

Proving Harm

Showing specific cases of harm can be straightforward. The person seeking protection can use the following to prove harm:

  • Videos or photos of any injuries caused by the abuser
  • Medical records showing treatment for the injuries suffered
  • A police report that shows physical harm suffered and any history of repeat violence
  • The witnesses' testimony, like a relative or friend who witnessed the abuser causing harm to the victim
  • Evidence that the abuser inflicted harm on the victim

Types of Restraining Orders

There are various types of restraining orders. A victim should request a restraining order depending on the person he/she wants to be protected against. For example, someone can request an order against their partner or former spouse. A victim can also file another type of order against their hostile neighbor. The court might not be able to decide in a situation where a victim requests a wrong restraining order.

The following are some of the standard restraining orders in California:

Elder Or Dependent Adult Restraining Order

According to California Welfare and Institutions Code 15657.03, an elder is 64 years or older. On the other hand, a dependent adult is an individual aged between 18 and 64 years living with mental or physical disabilities that make them unable to perform normal duties. Elder or dependent adult abuse encompasses an elder or dependent adult who is being or has been:

  • Neglected
  • Abducted or abandoned
  • Deprived by a caregiver of goods or services essential to prevent suffering or harm
  • Subjected to acts that cause physical harm, mental suffering, or pain
  • Isolated
  • Financially abused
  • Emotionally or mentally abused
  • Physically abused

The court can issue this restraining order if an elderly or dependent adult alleges to be suffering abuse under a caregiver or someone else who helps them in daily life. An elder or dependent adult abuse restraining order protects the elderly from physical abuse, threats, and harassment. It also prevents the abuser from going near or contacting the elder or dependent adult. This is a civil action that the abused elder can request or someone else who is legally allowed to pursue such a protection, including:

  • A person appointed as a guardian ad litem for the elder or dependent adult
  • A person acting within the authority of a power of attorney
  • Trustee or conservator of the elder or dependent adult

Apart from protecting an elder or dependent adult, this restraining order can also protect family members and individuals staying with them.

Workplace Violence Restraining Order

An employer can secure a workplace violence restraining order on behalf of an employee to protect them from the following:

  • Abuse at the place of work
  • Immediate danger
  • Credible threats of violence

This order keeps the abuser away from the victim and their family. It also prohibits the abuser from contacting the victim. A victim cannot file for this restraining order; only an employer can do it on their behalf.

Victims can file for the following orders:

  • A domestic violence restraining order
  • An elder abuse or dependent adult abuse restraining order
  • A civil harassment restraining order

An employer seeking a workplace violence restraining order does need to be an immediate employer. For example, a human resource manager can do so if he/she wishes to protect an employee against sexual assault, assault, battery, threats, stalking, or other physical violence. Additionally, this order is not put in place to silence employees from protected acts like whistleblowing, picketing, and unionizing.

Workplace violence restraining order typically takes a period that does not exceed three years from the date of hearing.

Civil Harassment Restraining Order

Before filing for a civil harassment restraining order, a victim should know the evidence that will be essential in their case. Judges usually issue this order for individuals, not in intimate relationships but want others to stay away from them. This order prohibits harassment from friends, neighbors, and others. The judge can make orders like staying away from the person's car, home, school, and place of business. The order can also outline some extra individuals who this order can protect.

The court will issue a civil harassment restraining order if an abuser has made credible threats of violence toward a victim or has been harassing the victim in some way. However, the judge will only grant this order if he/she is convinced that the victim has faced credible threats of violence. Credible threats of violence constitute physical harm to the victim, threats to their family, and threats to the victim's life.

Domestic Violence Restraining Order

Domestic violence restraining orders are applicable to the following individuals:

  • Married people
  • People who sired a child together
  • People who were or are in a dating relationship
  • Those staying in the same household together or family members

A domestic restraining order is meant to protect a victim from domestic abuse. This can be damage to property, sexual assault, injury or illness, deliberate infliction of physical pain, or threats to do any of those things.

The conditions of a domestic violence restraining order can be as follows:

  • Stopping the abuser from committing acts of domestic abuse
  • Preventing the abuser from visiting the place the victim is staying or anywhere else the victim will be temporarily
  • Stopping the abuser from calling or contacting the victim

The abuser can face the charges if he/she violates the above conditions. A domestic violence restraining order can be the best option if the victim has been or is in an abusive relationship.

The Process Of Securing A Restraining Order

Restraining orders typically protect most people from injury and death. They also assist people who have been abused or harassed to live peaceful lives without worrying much about what will happen. However, it can be intimidating and confusing if a victim is in a situation requiring them to pursue this order against someone else. Some of the steps a person should take when seeking a restraining order include:

Consulting An Experienced Attorney or Advocate

The steps in securing a restraining order can differ based on the jurisdiction and the type of restraining order the victim is pursuing. An applicant should consult a skilled family attorney regarding their situation as fast as possible. An attorney will help the victim follow the appropriate procedures to protect themselves and their children. Additionally, an attorney can help you if you expect to have other legal issues involving your abuser, like child custody lawsuits or divorce proceedings.

Establish Eligibility For Different Kinds Of Restraining Orders

A restraining order is a legal tool a person can use to protect themselves and their children. It can also prevent property destruction and, more importantly, physical, financial, or emotional abuse. The standard type of restraining order is a domestic violence restraining order, which is used to protect family members, romantic partners, children, and spouses. However, other types are:

  • Workplace violence restraining order
  • Civil harassment restraining order
  • Elder or dependent adult restraining order

The kind of relationship with the abuser will determine the type of restraining order that will be granted.

Complete The Required Documentation

The applicant must complete the following forms before being granted a domestic violence restraining order in California:

  • Confidential CLETS Hearing
  • Request for order, showing the date of each abuse, a fact-based description of the incident that gives the details of what happened, and the names of the witnesses.
  • Notice of court hearing
  • Temporary restraining order
  • Restraining order after hearing

The court will complete some forms, but others, like Notice of Court Hearing, have parts that the applicant must fill. A domestic violence attorney or advocate can guide the victim on the information to include.

Filing The Forms

The applicant must take the original forms to the court at the restraining order filing window. The court clerk will then guide the applicant on the county's procedures. Most courts usually request copies of the forms, so it is essential to produce several copies. The applicant will be issued with a lawsuit number, and the clerk will notify them of the date to return and take the documents after a review by the judge. 

This entire process can happen the same day in some California counties, but the initial review can last the whole business day. An applicant will not incur any cost for filing a domestic violence restraining order and can access e-filing services in some jurisdictions.

Review And Distribute The Order

The forms will be reviewed to establish if the applicant qualifies for a Temporary Restraining Order. If so, the judge will grant the petition for a temporary restraining order. The judge will also schedule a court hearing within 20 days. The temporary restraining order will expire automatically on the court hearing date.

The judge can still schedule a hearing date if he/she rejects the temporary restraining order petition. If the documents are not electronically returned, the court will notify the applicant on the date to go back for them.

The temporary restraining order that the judge grants will be part of the official court record once the court clerk files the applicant's forms. This order will enter the system, which law enforcement can easily access. The applicant can give a copy to anyone else covered by the order and take other copies to areas where the abuser is barred from going. Some of the areas can be the victim's place of work, the child's school, or the victim's apartment.

Serve The Abuser With The Papers

The applicant should serve the abuser with a copy of the order so they know the new restrictions. The victim should not do this personally; in fact, any individual covered by this order is not supposed to serve the abuser with the copy. A third party can do this and must provide evidence of a Personal Service Form. The applicant must file a personal service form with the court. The police can distribute the order in the area or seek the services of a "process serving" business.

Showing Up For Court Hearing

The hearing can be a stressful and emotional experience. Applicants should prepare well in advance to share the matter with the judge. The applicant can write and read the notes during the hearing if needed. However, practicing what to say and the order required is essential. If necessary, an applicant should seek the services of an interpreter.

A victim should have sufficient evidence to support allegations, such as:

  • Photos of property damage or injuries
  • Threatening emails or texts
  • Medical records

A victim can also gather witness statements, but filing a written copy of the statement with the original court forms is vital. At the end of the hearing, the court will make its ruling on the restraining order. The court can also postpone the case and set another court date if extra details are required.

File and Serve Final Order

A permanent restraining order can last up to five years in California. All the orders that the court will file the judge grants and the abuser will be served again. It is necessary to serve the abuser with the order even if he/she attended the hearing. The victim can file an amended request if the judge rejects the order. In this case, the applicant should provide extra information to the court. A family law attorney can help in this process.

Renewing a Restraining Order

A victim can request the court to extend a restraining order if the judge grants a permanent restraining order. The judge will schedule a court hearing to determine whether to renew it. The applicant will not incur any cost to make this request. Some of the steps the applicant must follow include:

  • Filing a request for renewal of the restraining order. The applicant must do so before the long-term order expires. However, the applicant must be listed as 1 on form DV-130 or DV-730.
  • Serving the abuser with a copy of the renewal request
  • Prepare for the renewal hearing.
  • Serve the abuser with a copy of the renewed restraining order.

Find a Restraining Order Attorney Near Me

Do you face a credible threat of harm from an intimate partner, a relative, friend, colleague, or other party? You can apply for a restraining order to seek protection. There are several types of restraining orders under California law, including domestic violence, elder abuse, civil harassment, and workplace violence restraining orders. The suitable restraining order depends on your relationship with the abuser. The police can grant you an emergency restraining order if you are in danger of immediate harm. This order can later be converted into a temporary or permanent restraining order.

Contact the Goldman Flores Restraining Order Law Firm if you need reliable legal help in obtaining a restraining order in California. Call us at 213-341-4087 to speak to one of our attorneys.