If you have been threatened by another individual or been subjected to physical violence, you may be able to obtain a restraining order that legally prohibits the individual from coming in contact with you or even being within a certain distance of your residence. If you are looking to get a restraining order, but are unsure about the legal process necessary to get one, this article is for you.
What a Restraining Order Does
In California, a restraining order prevents a specific individual from harassing, abusing, stalking, or threatening you. The individual that is protected is known as the “protected person.” The other party (e.g., the abuser, stalker, etc.) is known as the “restrained person.” Restraining orders are also known as “protective orders.”
It is important to note that there is not just one type of restraining order. In fact, there are four types of restraining orders that can be obtained from a California judge, including:
- Domestic Violence Restraining Order
- Civil Harassment Restraining Order
- Elder or Dependent Adult Abuse Restraining Order
- Workplace Violence Restraining Order
Overview of a Domestic Violence Restraining Order
You can seek a domestic violence protective order when you were the victim of abuse by another individual and you have a “close relationship” with the abuser. In California, a “close relationship” means that you and the other individual are:
- dating or used to date,
- have a child, or children, together,
- live together, and/or
- are family members or in-laws.
Overview of a Civil Harassment Restraining Order
You can potentially obtain a civil harassment restraining order if you are being harassed, stalked, abused, or threatened by another individual and that individual is not in a close relationship with you. This type of restraining order is usually against roommates, neighbors, distant family members, friends, or anyone you are not closely related to.
Overview Elder or Dependent Adult Abuse Restraining Order
You may be able to get an elder abuse or dependent adult abuse restraining order if you are 65 years of age or older and you are the victim of abuse, neglect, physical injury, or deprivation by a caregiver. If you are between 18 and 64 years of age, and you have certain mental or physical disabilities that keep you from being able to do normal activities or protect yourself, you may also get this type of restraining order.
Overview Workplace Violence Restraining Order
A workplace violence restraining order can be obtained by an employer who has received credible evidence that one of their employees is being subjected to unlawful violence or threats of violence from another individual. It is important to note that an employee may NOT seek a Workplace Violence Restraining Order on their own behalf.
Requirements to Get a Restraining Order
In order to obtain a restraining order in California, you will need to complete a series of forms that are maintained by the California courts (usually the California Superior Court). The forms will ask you to describe why you are requesting protection from another individual. Once the forms are complete, you (or your California attorney) will file the forms with the court clerk. Please note that you will be asked to pay a filing fee (unless you qualify for a fee waiver).
Once filed, a judge will then review the forms and decides whether or not to issue a Temporary Restraining Order. If issued, the order will usually last for 21 days.
Following the issuance of the temporary restraining order, the court will determine whether or not to make it a Permanent Restraining Order after hearing evidence on the matter. Prior to this hearing, notice must be provided to the restrained party via a process server.
If the evidence indicates that the protective order should stay in effect, the court will issue an order that remains in effect up to five years.
Ramifications of the Order on the Restrained Party
Having a restraining order filed against you is a big deal. Violating the protective order is a crime according to California Penal Code section 273.6 PC. The crime is charged as a misdemeanor. If convicted, you could be ordered to pay a fine of up to $1,000 and be incarcerated for up to one year at a country jail.
In addition, it is important to note that most restraining orders will prohibit the restrained party from possessing, owning, or purchasing a firearm in the State of California.
Length of Time a Restraining Order Remains in Effect
A temporary restraining order typically only lasts a few months. An “emergency” protective order is even briefer, only lasting up to five business days or seven calendar days. The maximum length of a restraining order is five years from the court date or court hearing date upon which the order was issued.
Emergency Protective Orders
Many people do not realize that law enforcement and police officers have the ability to issue an emergency protective order when responding to a domestic violence call. Law enforcement officers can issue the emergency protective order if they believe a person requires immediate protection from another person, and they contact a judge and secure court approval for the emergency order.
Challenging a Restraining Order
If you are someone who received notice that a restraining order has been filed against you, it is important to retain the services of an experienced defense attorney to potentially challenge the order at the permanent restraining order hearing. These hearings typically occur about 21 days after the temporary restraining order was issued. During the hearing, your defense attorney can argue to the judge why the restraining order is unnecessary. The attorney can also submit evidence and call witnesses. If the judge agrees with the defense attorney, the restraining order will expire and it will not be eligible to be converted into a permanent restraining order.
Have Questions about Restraining Orders in California? Contact The Geller Firm Today
If you need help with obtaining a restraining order or defending against a restraining order, The Geller Firm is here to help. We are in San Francisco, San Jose, and Lafayette and are available for virtual and in-person consultations. We serve the entire Bay Area. Contact us today to schedule an appointment.
The Geller Firm is proud to provide legal services in San Francisco, Concord, Antioch, Richmond, San Ramon, Pittsburg, Walnut Creek, Brentwood, Danville, Oakley, Martinez, Pleasant Hill, San Pablo, Lafayette, El Cerrito, Hercules, Orinda, Pinole, Moraga, and Clayton. The Geller Firm also works in Alameda County, Santa Clara County, San Mateo County, Marin County, and Solano County.