How To Get a Restraining Order

How to get a Domestic Violence Restraining Order

Adapted from “Criminal Justice Intervention: Getting an Order of Protection” and

WomensLaw.org: How to Get a Restraining Order”

A Domestic Violence Restraining Order (DVRA) is a court order that will help to protect you from domestic abuse. A Domestic Violence Restraining Order tells the abuser to stop harming or threatening you.

California’s Domestic Violence Prevention Act (DVPA) defines domestic violence as threatened or actual abuse from someone with whom you have had a close relationship. DVPA is designed to protect you or your children under the age of 18 who live with you from actual or threatened violence, such as: physical injuries, sexual assault, attacking, striking, battering, molesting, harassing, stalking, harassing or threatening phone calls, destroying personal property, disturbing your peace, and threatening to do any of the above.

Eligibility

You can file for a Domestic Violence Restraining Order if you, or your minor child, have been victims of domestic violence from:

  • A spouse or former spouse
  • A person you are dating or used to date. (It does not have to be an intimate or sexual relationship.)
  • The mother or father of your child
  • A person related to you by blood, marriage, or adoption
  • A person who regularly lives or used to live in your home (but you must have a closer relationship than just roommates).

How Do I Get an Order For Protection?

    1. Go to the courthouse. (You may want to call the courthouse first to see if you need an appointment or to get instructions.):
  • in the county where you live, or
  • in the county where the abuser lives, or
  • in the county where the abuse happened, or
  • in the county where you and the abuser had other family court cases.
    1. Ask the court clerk for a “Request for Domestic Violence Restraining Order” form. Fill out the form. Detailed instructions are available and the court staff or an advocate (a non-lawyer helper) may help you file a Petition (that tells the court what you want) and an Affidavit (that tells the court what happened).
    2. If you need immediate protection because you believe you are in danger, ask for an Emergency (Ex Parte) Order. This is an order signed the same day you apply, before the abuser knows about the action. An Emergency (Ex Parte) Order will give you immediate protection once it is served on the abuser until there is a hearing.
    3. There are no fees for a Domestic Violence Restraining Order.
    4. YOU DO NOT HAVE TO HAVE A LAWYER. However, you may wish to have a lawyer, especially if your abuser has a lawyer.
    5. In most cases, the court will set a hearing date for no more than 14 days after you apply for a Domestic Violence Restraining Order; seven days if you have received an Emergency (Ex Parte) Domestic Violence Restraining Order. The law gives you the option of obtaining a Domestic Violence Restraining Order without ever having a hearing. See below for more information on this option.
    6. When you go to the courtroom, it is helpful to bring with you:
  • a picture of the abuser, if you have one;
  • the abuser’s home address and work address;
  • written notes describing the abuse and when it happened; and
  • any pictures, police reports, or medical reports related to the abuse.

What Can the Order For Protection Include? What Can I Ask the Court to do?

The court can make any of the following orders based on what you request in the Petition:

  • Order the abuser not to assault, threaten, abuse, follow, harass, or interfere with you, your children, or people you live with in person, at work, on the telephone, or by other means;
  • Order the abuser to stay away from any place you request including your school, your children’s school, your work place, your friends’ homes, or any place where you are seeking shelter;
  • Prohibit the abuser from possessing or purchasing a firearm;
  • Tell the police to remove the abuser from the home and help you to return to the home;
  • Grant you temporary full control over things that you own together such as a car, a truck, a boat, a computer, tolls, electronic equipment, bank accounts, or household appliances;
  • Order the abuser to continue to make the loan payments (be sure to specifically ask for this if you need it);
  • Order the abuser to return your personal belongings;
  • Order the abuser to pay certain bills, pay back money you lost for missing work or other expenses (such as ambulance, medical, dental, shelter, counseling and/or legal fees);
  • Order the abuser to pay your attorney fees;
  • Order the abuser to attend a batterer’s treatment program or other counseling service;
  • Anything else you ask for and the judge agrees to.

A federal law makes it a crime for a person to possess guns if they have a Domestic Violence Restraining Order against them. If the abuser owns or has guns, in your petition you should ask the court to order the abuser to turn all guns over to the police.

How Does the Abuser Find Out About the Hearing or About the Order?

If you know where to find the abuser, the Petition and any Emergency (Ex Parte) Order must be personally handed to (served on) the abuser. This is done by the Sheriff. There is no cost to you for the service. Your county may require that you fill out a “fee waiver application” in order to have the sheriff serve the order for free. If you hire a professional process server to serve your abuser, you must pay for that separately.

What if I don’t know where the abuser is, or if the abuser is hiding or can’t be found? There are special ways to serve people who can’t be found. The court can order service in other ways, such as mailing the papers to an address where the abuser might get mail. The court can also order service by publishing the Petition in a newspaper’s legal notice section or in a special legal newspaper. The court clerk or advocate will help you fill out special forms. You should check with the court no later than 14 days after you filed the Domestic Violence Restraining Order to find out if the abuser has been served and to find out if you must fill out any special forms.

What Happens at the Hearing?

You must show up at the hearing! If you don’t, any Emergency (Ex Parte) Order you have will be dismissed. If the abuser was served with the Petition and Emergency (Ex Parte) Order and does not show up for the court hearing, the judge will review your requests and usually will give you the Order For Protection you have requested. At the hearing, you will tell the judge what happened. You may bring witnesses. You are not required to present evidence other than your own testimony. But, it usually helps to bring police reports or medical records, and any photographs of injuries, as well as witnesses who saw the abuse or your injuries or heard you or the children being abused or threatened. [NOTE: You may not be able to use written reports, affidavits, or statements from persons who are not at the hearing as witnesses.] The abuser also has a chance to tell the court his or her side of the story. The judge may ask questions, and you and the abuser may be allowed to ask each other questions. The judge will usually make a decision right away about whether to issue an Order For Protection.

You may have an advocate with you. You may also have a lawyer, but YOU DO NOT HAVE TO HAVE A LAWYER.

Sometimes the abuser will also file a Petition for an Order For Protection, claiming that you have abused him/her as well. The judge may choose to hear both Petitions at the same time and decide who should get an Order For Protection. If the abuser has not filed a Petition against you, a judge will not issue a “Mutual Order For Protection” (an order against both you and the abuser).

What Happens After the Hearing? How Long am I Protected?

The Domestic Violence Restraining Order will describe your rights. Read it carefully. The judge may order different things than what you asked for. If you are confused about what the judge has ordered, you can ask for a copy of the “minute order,” which is usually available from the court clerk a few days after the hearing. The minute order is what the court clerk writes down as the order the judge made at the hearing. You can also purchase a copy of the transcript from the court reporter, which will include everything that was said during the hearing. (The transcript can be very expensive, so ask for an estimate before requesting one.)

Emergency Protective Order

If a police officer responds to a domestic violence call, the police officer can call a judge (anytime, day or night) and ask for an emergency protective order, which goes into effect immediately.

An emergency protective order can last only five business days or seven calendar days (whichever is shorter). It is supposed to give you time to go to court to ask for a Domestic Violence Restraining Order, which lasts longer. The emergency protective order can make the other person leave the home, stay away from you, and not see your children, at least on a temporary basis.

Temporary (ex parte) Restraining Order

When you go to court to apply for a restraining order, the clerk will give you a date, usually within three weeks, when you will have to come back to court for a full hearing.

If you are in immediate danger and need protection right away, you can ask for a Temporary (ex parte) Restraining Order, which will last for up to 15 days, or until you have your full-court hearing, which is usually three weeks. You can get this temporary order “ex parte”, which means you can get it without your abuser being there.

Restraining Order After Hearing

After having a court hearing, a judge can grant you a Restraining Order After Hearing that can last up to five years. This order is designed to keep your abuser from threatening, harassing, or abusing you.

You can ask the court later to have the order extended for another five years, or permanently. The court can make this extension if it believes you have a “reasonable” fear that your abuser will threaten, harass, or abuse you again once the first restraining order expires. Note: There do not need to be new incidences of abuse in order to get the order extended.

A copy of the Order For Protection will be sent to the local sheriff’s department and to police departments by the court clerk. KEEP A COPY OF THE ORDER WITH YOU AT ALL TIMES.

What Happens if I Have an Order and the Abuser Violates It?

If the abuser threatens, harasses, or contacts you or the children, or comes to your house or apartment or place of employment, it is a violation of the Domestic Violence Restraining Order. If the abuser disobeys the Order, you should call the police or sheriff right away. The police do not need to see the assault or threat, but they do need to see a copy of the Order. The abuser can be put in jail for up to 90 days and be ordered to pay a fine of up to $700.00 for violating the Domestic Violence Restraining Order. Even if you invited the abuser into your home, the abuser may still be guilty for violating the Order. Some repeat violations are gross misdemeanors which may result in a sentence of up to one year in jail and/or a $3,000.00 fine. Other violations are felonies which may result in a sentence of imprisonment of up to ten years and/or a fine of $20,000.00.

You can also ask the court to enforce the Order. You must file a form with the court describing what the abuser did that was in violation of the Order. You can also use this form if the abuser doesn’t pay child support, doesn’t follow the custody or visitation order, or fails to go to counseling. The judge can order the abuser to appear in court for a hearing. Both you and the abuser can testify. If the judge decides that the abuser violated the Order, the abuser can be punished.

Do I Have to Have a Court Hearing to Get an Order For Protection?

The law gives you a choice whether or not to ask for a court hearing. If you don’t ask for a hearing, the abuser still has the right to have a hearing, or a judge may order a hearing.

If you don’t ask for a hearing, you can only ask the court for four things:

  • Order the abuser not to harm or threaten you or the children and not to call or contact you;
  • order the abuser out of the home;
  • order the abuser to stay away from your work; and
  • order that insurance coverage be continued.

After the Petition is personally served on the abuser, the abuser has five days to ask for a hearing. After the abuser is served, you should check with the court on a daily basis to see if a hearing has been requested by the abuser. The court will send you a notice of the hearing date and time.

If no hearing is requested, the judge may issue the Order For Protection with you not having to go to court. The Order will say how long it lasts. Usually the Order For Protection lasts for one year.

How Do I Change, Extend, or Dismiss an Order For Protection?

Contact the court clerk or advocate in the county where you requested your Order and explain that you wish to change, extend, or dismiss your Domestic Violence Restraining Order. Most courts require you to complete a form requesting the change and to appear in court again. The abuser may also have to appear in court.

It is important to have your Order dismissed by a judge if you and the abuser wish to live together again or have contact.

If you wish to extend your Domestic Violence Restraining Order, you must contact the court clerk one or two months before the Order expires and complete paperwork explaining why you continue to need the Domestic Violence Restraining Order. A judge will consider extending your Order if the abuser:

  • violated the order while you had it, or
  • has been harassing or stalking you, or
  • you are still in fear of physical harm because of conduct by the abuser.

If you move after getting your Domestic Violence Restraining Order, send a copy of your Order to your new police department and call the court to change the address in your file. Your address can be kept secret from the abuser.

Your Domestic Violence Restraining Order  is effective in all 50 states, the District of Columbia, Tribal Lands, and U.S. Territories.

Additional Resources

For more detailed information on how to obtain a Domestic Violence Restraining Order in the State of California (including the appropriate forms to fill out) visit the following the website:

http://www.womenslaw.org/CA/CA_how_to.htm#19