A restraining order is a court order that prohibits one party from contacting or coming closer to another. A victim of domestic violence or other forms of abuse can apply for a restraining order to ensure their safety. The purpose of a restraining order is to protect the victim and stop harmful conduct. In addition to domestic violence, the court can issue restraining orders for other situations like harassment and stalking. There are several types of restraining orders, including emergency restraining order, temporary restraining order, and permanent restraining order. The primary difference between a temporary and permanent restraining order is the validity period. A temporary restraining order offers protection for up to 21 days, while a permanent restraining order can be effective for up to five years.
Temporary Restraining Orders
A temporary restraining order, abbreviated as TRO, provides immediate protection and can be granted even if the restrained person is not present. Most petitioners for temporary restraining orders face immediate harm; thus, judges offer these orders quickly to prevent imminent harm and threats. A temporary restraining order remains valid until the restraining order hearing, during which the judge decides whether to convert the TRO into a permanent restraining order. At the hearing, both parties can present their sides of the story and evidence.
The petitioner must fill out the relevant forms when applying for a temporary restraining order. The primary form is the request for a restraining order, and this must be accompanied by supporting documents to prove why the victim is applying for a restraining order.
In the supporting documents, the victim should outline incidents of threats or abuse. The victim can also provide supporting evidence, like witness statements and photographs. A temporary restraining order is handy if the victim faces an immediate risk of harm. For example, domestic violence victims can apply for a TRO following threats of violence or assault by a partner. A TRO establishes a temporary boundary and protection until a permanent solution can be obtained.
Like the name suggests, a TRO is temporary and protects the victim until the court hearing, where the judge decides whether to grant a permanent restraining order.
When a TRO is in place, the law enforcement officers enforce it, and the restrained person can be arrested for violating the order.
Situations that call for immediate intervention and protection by the legal system include the following:
- Harassment
- Stalking
- Threats of Violence
- Domestic Violence
Permanent Restraining Orders
Unlike a temporary restraining order, a permanent one serves a longer purpose. The court can only issue a permanent restraining order after a thorough court hearing and after reviewing the evidence from the victim and the perpetrator. At the hearing, the victim must provide sufficient evidence to show that he/she require prolonged protection. The evidence can include witness statements, medical records, police reports, messages, or emails from the perpetrator. The restrained person will also be able to challenge the victim’s evidence and present a defense.
A permanent restraining order can be in effect for several years, until the court terminates the order. Sometimes, the judge can modify the permanent restraining order. Violating a restraining order is an offense that can result in criminal charges. Sometimes, the restraining person could face felony charges for violating a restraining order, depending on the situation/, circumstances.
Some of the situations in which the court can grant a permanent restraining order include:
- Repeated harassment
- Ongoing threats
- Persistent stalking
- A pattern of abusive conduct
In the abovementioned situations, the victim can obtain long-term protection to enjoy peace.
Differences Between Temporary And Permanent Restraining Orders
The common differences between temporary and permanent restraining orders are:
Duration of Protection
Duration is the primary difference between temporary and permanent restraining orders. TROs offer temporary relief and protection, lasting up to 21 days, while permanent restraining orders provide long-term protection.
Level of Evidence Required
A temporary restraining order offers immediate protection based on need. The petitioner must present evidence of a credible threat when applying for a temporary restraining order. The applicant can also provide sworn statements. When applying for a permanent restraining order, the applicant must provide compelling evidence during a court hearing. There must be proof of an ongoing risk of harm. The restrained person does not have to be present before a TRO is granted. However, before granting a permanent restraining order, the restrained person will be able to challenge the petitioner’s request and evidence.
The Process Of Obtaining The Restraining Order
The process of obtaining a temporary restraining order differs from that of obtaining a permanent one. Obtaining a permanent restraining order requires a court hearing and has a higher burden of proof. The timelines for obtaining the restraining orders also differ. A TRO can be granted the same day upon applying, but a permanent restraining order requires more time since a court hearing must be scheduled.
The Implications For Both Parties
For the restrained party, a temporary restraining order can feel abrupt since, in most cases, the restrained party learns about the order after being served a notice of restraining order. A permanent restraining order involves a court hearing, and the restrained person is more prepared. For a permanent restraining order, both parties meet in court to present evidence and present defenses. Therefore, a permanent order does not surprise the restrained person since it is anticipated.
Why You Need A Restraining Order Attorney
Whether you are the victim or the restrained person, navigating the intricacies of a restraining order is not easy. You should seek legal counsel to understand your rights and know what to expect. Having reliable legal guidance can help you make the right decision based on the unique circumstances of your case.
The Process Of Obtaining A Temporary/Permanent Restraining Order
There is a standard process of obtaining a restraining order, whether you seek a temporary or permanent one. However, a permanent restraining order has a greater burden of proof than a TRO. Below are the steps to follow when applying for a restraining order:
Gather Relevant Evidence
When applying for a restraining order, the victim must gather evidence to support their case. The following evidence can be relevant:
A Pending Criminal Case
The judge will likely issue a restraining order if there is an ongoing criminal case against the perpetrator. Therefore, the victim should call out pending cases against the perpetrator when seeking a restraining order.
Photos Of Injuries Or Damages
Photos of the victims' injuries or damages are the most common evidence submitted in restraining order cases. The victim can take photos of the injuries caused by the perpetrator. After an incident description, the victim can add photos to give the complete picture to the judge.
Printouts Of Texts, Emails, or Voicemail Transcripts
In online or digital harassment or threats, the victim can attach screenshots of texts, emails, or voicemail transcripts.
911 Distress Calls
The victim can provide evidence to show that he/she contacted the authorities to report the abuse. The victim can make the case stronger by recording the following information:
- The number the victim dialled, especially in cases of domestic hotlines
- The date or the approximate time when the call was made
- The information reported on the call
- The specific details of the person who made the 911 call
Medical Records
The victim can attach medical records for treatment sought due to the injuries inflicted by the defendant earlier. The medical records can include records of hospital visits or printouts from the hospital portal outlining the hospital visits.
Police Reports
If the victim reported abuse before, police reports can come in handy to prove abuse or violence.
Witness Testimonies
A witness can be any person, including a relative, neighbor, bystander, co-worker, or other relevant party. A witness statement describes the incidents that occurred while maintaining as many details as possible.
Obtaining The Relevant Court Forms
When applying for a temporary restraining order, the victim must fill out and submit specific court forms. The forms have questions that help the judge better understand the victim’s situation. The relevant forms include:
- DV-100 — This is the form used to request a restraining order and inform the judge why a restraining order is necessary
- CLETS-001 — The information on this form enables the police to enforce the restraining order.
- DV-109 — This form is the notice of court hearing. The victim only completes numbers 1 and 2 of this form, while the court completes the rest.
- DV-110 — This is the Temporary Restraining Order Form. The victim completes numbers 1,2, and 3 of this form, while the court completes the other parts.
- FL-150 — This form is relevant if the victim requests spousal support, attorney’s fees, or child support.
All the forms outlined above are available on the court's websites. However, some courts use modified versions of these forms, so a petitioner must be alert to use the right form. Checking the local courts' websites can enable applicants to find the versions of the court forms to use. Most courts also have free self-help centers where petitioners can access the forms. Applicants can also use free websites to prepare the restraining order documentation online.
Filing The Court Forms
The petitioner submits the court forms and the accompanying documents to the court so that the court clerk can review them. The petition is filed when the court clerks review and accept the documents.
In California, a petitioner should file for a restraining order at a court in their county of residence. There could be some exceptional cases, but this is the standard procedure. The victim should consult an attorney in special circumstances, for example, if the abuser is overseas.
Methods Of Filing
There are several ways of applying for a restraining order:
- In person
- Electronically through a portal
- Through another person
When filing for a restraining order in person, the application forms should be delivered to the local court during court hours. Typically, the victim takes three copies of the application forms. After the court clerk reviews the documents and confirms that they are okay, he/she enters them into the court system. The clerk also stamps them to show acceptance.
Most courts have online portals where petitioners can create an account. The petitioner can upload the restraining order forms and pay the filing fee. The filing fee ranges from $5 to $10.
Some courts accept filing through another person. This can include filing the documents through a courier or a friend. Most companies charge a fee to file the documents on behalf of a petitioner.
Obtaining A Restraining Order
Depending on the evidence presented and the facts of a case, the judge can grant a restraining order immediately. This order is known as an emergency restraining order. However, if the situation is stable, the judge can issue a temporary restraining order, usually after a few days. The application could be rejected if the jurisdiction is incorrect or the application is incomplete. The temporary restraining order is valid for up to three weeks, usually until the court hearing. If the court hearing is delayed, the petitioner should check with the court to ensure that the temporary restraining order is renewed until the hearing.
Serving The Abuser
This step applies only if the petitioner is successful in obtaining a temporary restraining order. Serving is the process of informing the abuser about the restraining order and serving them with documents. There are multiple ways in which the abuser can be served, but the victim should not serve the abuser directly. The various ways of serving an abuser include the following:
- Through a police officer
- Through a friend, relative, or other person above 18 years old who is not part of the case.
- A specialized courier
Attending The Court Hearing
The court holds a hearing, usually three weeks after issuing a temporary restraining order. The judge examines the evidence and listens to both the victim and the abuser. If there is enough supporting evidence, the judge issues a permanent restraining order. A permanent restraining order can offer protection for up to five years. It is an offense for the restrained person to violate the terms of the restraining order.
Find A Reliable Restraining Order Attorney Near Me
Victims of domestic violence or civil harassment can be issued with restraining orders to protect them from their aggressors. Restraining Orders can protect victims from harassment, sexual abuse, threats, or stalking. The person who applies for a restraining order becomes the protected person, while the one against whom the order is issued becomes the restrained person. The court can issue a temporary restraining order and later convert it into a permanent restraining order after the hearing of the restraining order. For guidance or help in obtaining or fighting against a temporary or permanent restraining order, an attorney can help. At the Goldman Flores Restraining Order Law Firm, we have committed attorneys with a comprehensive understanding of the California restraining order laws. Contact us at 213-341-4087 to speak to one of our attorneys.
