A restraining order is a protective court order signed by a judge prohibiting a person (abuser) from abusing, threatening, harming, stalking, harassing, contacting or approaching another specified person (victim). In most states, including California, the most common types of restraining orders are:
- DOMESTIC VIOLENCE RESTRAINING ORDER - In order for the court to issue a Domestic Violence Restraining Order, also known as a DVRO, there must be a specific relationship between the parties, which includes being a spouse or former spouse; boyfriend-girlfriend, boyfriend - boyfriend, girlfriend - girlfriend (or dating relationship); cohabitant or former cohabitant; the parties have a child together; or the parties are closely related (e.g. parent/child, brother/sister). In addition, there must be physical abuse, threat of abuse or violence, stalking or sexual assault conduct. A Temporary Restraining Order (TRO) can be obtained by one of the parties which is valid for approximately three weeks or until the full court hearing. In order to obtain a TRO there must be reasonable proof of past or current acts of abuse. A TRO can be obtained ex parte, which means that it can be filed without the accused knowing about it. At the full court hearing the judge will determine whether the restraining order should be extended or dissolved. The standard of proof used by the court is "preponderance of the evidence." After the court hearing the court can issue the permanent restraining order for up to 5 years.
CIVIL HARASSMENT RESTRAINING ORDER - A
Civil Harassment Order, also known
as a CHRO, is obtained by a person who does not have a close relationship with the person he or she wants protection from (e.g., a neighbor or roommate). They are issued by a civil judge and can last up to three years. The person seeking the
CHO must have suffered harassment from the person they are seeking protection from. "Harassment" is defined in California law as unlawful violence (such as assault or battery, or stalking); or a credible threat of violence; or a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses and serves no legitimate purpose. A Temporary Restraining Order can be obtained ex-parte (without notifying the other party) when there is reasonable proof that there has been harassment in the immediate past. At the full court hearing the judge will listen to the evidence on both sides and will determine by "clear & convincing" evidence (a relatively high standard of proof) whether unlawful harassment exists and would likely continue in the future. If so, the TRO would be converted to a permanent restraining order usually for three to five years (though it can be less time).
- ELDER AND DEPENDENT ADULT RESTRAINING ORDER - This type of restraining order is used for victims (Elder Adults) who are 65 years or older and reside in California, and Dependent Adults. Dependent Adults are persons residing in California between the ages of 18 and 64 and have certain disabilities (physical and mental limits). These restraining orders can last up to three years. This type of restraining order protects Elder and Dependent Adults from past or current acts of abuse. In California, abuse is defined as physical abuse, neglect, financial abuse, abandonment, abduction, or any other treatment resulting in physical harm, pain, or mental suffering; or deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering. The standard of proof required in this type of restraining order is "preponderance of the evidence."
- WORKPLACE VIOLENCE RESTRAINING ORDER - This type of restraining order is initiated by the business owner of an employee when the employee has been subjected to an unlawful act of violence or a credible threat of violence in the workplace. A Temporary Restraining Order (TRO) may be obtained from the court and then a full court hearing is set in the immediate future. The business owner (employer) must prove by "clear and convincing evidence" that the employee has suffered unlawful violence or that a credible threat of violence is likely to reoccur in the workplace. These restraining orders can last up to three years. Only employers and not individual employees can seek to obtain this type of restraining order.
There are others orders of protection similar to restraining orders called protective orders. These include:
- Emergency Protective Order - An Emergency Protective Order, also known as an EPO, is issued by law enforcement when the officer is called to the scene of a domestic violence incident and believes an individual is in danger. The officer will contact a judge and obtain a temporary protective order for the victim. It is valid for 5 days.
Criminal Protective Order -
A Criminal Protective Order also known as a 'No
Contact" Order is issued by the criminal court in active domestic violence cases. It is also issued in stalking and sexual assault cases and as cases involving violence or threatened violence. The order may be issued by the judge or at the request of the prosecutor. The order is served on the defendant in open court at the first court appearance, known as the Arraignment. A Criminal Protective Order may last up to five years, however, the court can extend it for an additional five years if necessary.
If a restraining order has been filed against you, you cannot:
- Annoy, harass, assault, stalk or disturb the peace of the protected person(s);
- Have direct or indirect contact with the protected person, including telephone, electronic or written contact;
- Be within a certain distance (usually100 yards) of the protected person's place of work, home or school.
A violation of a permanent restraining order is a criminal offense, which can subject you to arrest for misdemeanor Contempt of Court. Conviction can result in a county jail sentence for up to 1 year.
If you have been served with a restraining order directing you to stay away from someone, or alternatively if you wish to obtain a restraining order, consult an attorney with experience in restraining orders. Although you do not need an attorney to assist you with obtaining or fighting a restraining order, representing yourself in court puts you at a huge disadvantage, especially if the other party has a lawyer.