When dealing with a family law matter, things can become intense. Unfortunately, these stressful situations can bring out the worst in people, and abuse can result. Abuse is not merely physical. It can include physical or sexual abuse, emotional or psychological abuse, economic or financial abuse, threats, harassment, intimidation, and stalking. In these situations, there may be a need for a restraining order. If you are dealing with harassment, threats, domestic violence, or abuse, you must prioritize your safety.
At Feinberg & Waller, APC, we know how scary these situations are. We also know how difficult it can be to reach out for help. As a family law firm committed to providing every client with the compassionate-yet-strong advocacy they need to feel supported as they work through their legal issues, we are here to help you get the protective order you need to keep yourself and your family safe.
Protective Orders for Family Law Matters
A protective order, also called a restraining order, is a court order that is issued to protect someone from being abused. The person the protective order is issued against is referred to as the “restrained person,” while those who requested or are named in the order are referred to as the “protected persons.” In California, there are a few types of protective orders: personal conduct orders, stay-away orders, and residence exclusion orders.
Personal conduct orders are intended to stop specific behaviors and acts against the people named in the order, such as contacting, calling, sending messages, attacking, threatening, assaulting, etc. Stay-away orders are used to keep the restrained person a specific distance away from the person named in the order, such as 50 to 100 yards. Stay-away orders can also prohibit the restrained person from being where the protected person lives, works, attends school, where their children attend school, etc.
Residence exclusion orders, also called “kick-out” or “move-out” orders, are used to remove the restrained person from the protected person’s residence until their court hearing. If someone has been served a residence exclusion order, they can only take their clothing and personal belongings with them when they leave. In the context of family law, residence exclusion orders can only be used in domestic violence or dependent/child abuse cases.
How to Get a Restraining Order
If you are dealing with a family law situation and need a restraining order, you will file for a Domestic Violence Restraining Order (DVRO). DVROs are specifically used for cases in which someone has been abused by someone with whom they share a close relationship, such as a spouse, partner, parent, sibling, or grandparent. They also cover situations involving former spouses, separated couples, and those who share children together.
There are three different levels of restraining orders:
Emergency protective orders are used when there is an immediate and present danger. They can be requested by a police officer at any time, day or night, and take effect immediately. Emergency protective orders last five business days (or seven calendar days). Temporary restraining orders, also called ex parte orders, provide an individual with immediate protection while they wait for their scheduled DVRO hearing. Temporary orders typically last around three weeks.
When first issued, permanent restraining orders can last up to five years. According to California Family Code § 6345, these orders are given at the court’s discretion after a full DVRO hearing and can be renewed for another five years or permanently. A renewal request may be brought before the court at any time within the three months preceding the original order’s expiration.
When a restraining order hearing is requested, the person against whom the order is asked must be served with a notice of the hearing. The sheriff’s department can do this at the request of the person asking for the DVRO. The person requesting the hearing must then file a proof of service before the hearing date. At the DVRO hearing, you can expect the judge to hear testimony from both parties and decide whether to issue the protective order and for what duration.
To successfully petition for a restraining order, the petitioner must present a preponderance of evidence supporting their request. If you need a restraining order, it is always a good idea to work with a skilled attorney, like ours at Feinberg & Waller, APC. Your lawyer can help you prepare for your DVRO hearing, thereby increasing your likelihood of a successful outcome.
What Happens If a Restraining Order Is Violated?
While restraining orders are incredibly useful and help keep people safe, sometimes they are violated. When someone disobeys a restraining order, it can be terrifying and stressful. However, you do have some options. If someone breaks a restraining order, the police can arrest them. The penalties for violating a protective order can include both fines and jail time.
What to do if the restrained person violates your restraining order:
- Call the police
- Collect proof or documentation of the violation
- Make copies of your restraining order and your proof of service
When someone violates their restraining order, you can reach out to the local district attorney and ask them to file criminal charges against the restrained person, or you can file a civil contempt action. However, before doing either of these things, discussing these options with an attorney familiar with handling these types of cases is a good idea. Doing so will help you make an informed decision. Therefore, after calling the police, we recommend that you also reach out to one of our family law restraining order attorneys.
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