A woman called me last week with the following message: “Mr. Bamieh, I was at the store and my ex-boyfriend was there. I saw him giving me a dirty look for, like, 10 minutes. I need a restraining order because he’s stalking me.” Although this person was legitimately worried, she failed to understand the reality of obtaining a restraining order. I decided to write a quick blog post to relay the basics of restraining orders. I am purposefully avoiding legal lingo to promote an easier understanding of the law, how restraining orders are obtained, and the procedures for obtaining them.
There are basically two types of restraining orders available in California. The first is what I call the domestic violence restraining order. If you have a relationship with the person you are seeking restrained (e.g. boyfriend/girlfriend, husband/wife, ex, parent/child, or other type of relationship of this nature), you may qualify for such a restraining order. The benefit of this order is it doesn’t require the level of evidence that civil harassment orders require—the other type of restraining order. This order usually provides immediate protection from the person you are seeking restrained.
Civil Harassment Restraining Order
The second is a civil harassment restraining order. This doesn’t require one of the special relationships mentioned above, but you must convince the court you are in legitimate danger (from the person you seek to restrain). Since the court wants to see more evidence for a civil harassment order than a domestic violence restraining order, it is more difficult to obtain. If you seek a civil harassment order and do not get it, you can be forced to pay the other party’s attorney fees.
The first step in obtaining either order is to fill out the proper paperwork. You can obtain the paperwork online in many jurisdictions (in Ventura County, search the following site: http://www.ventura.courts.ca.gov/). The form requires you to identify the person you want to restrain, and who you want protected (yourself, your children, etc.), and then you have to state under penalty of perjury why you think the person needs to be restrained (describe past violence or why you fear the person). This form is an application to obtain a temporary order. Once the form is filled out you have to file it with the court. The clerk will calendar a court date within a day or two of your application being received. A judge will review your application and potentially set a hearing date for a permanent restraining order (a three to five year restraining order is called a permanent order). Once you get a court date you have to notify the party you are seeking restrained. Anyone 18 or older can call that person and tell them when and where they must appear for the first hearing. Eventually all the paperwork filed with the court has to be served to the person you are seeking restrained.
Either the person seeking the order or their lawyer must attend the first hearing. At that first hearing, a judge/magistrate will decide whether a temporary restraining order should be granted. The court typically bases this decision on what you wrote in the declaration you submitted with the application. The court will do one of three things:
- Grant the temporary order and set a hearing date for the permanent order;
- Deny the order and send you on your way;
- Deny the temporary order but set a hearing to see if you can produce enough evidence to obtain a permanent order.
If you get the temporary order granted and signed, you have to file it with the court, get copies, and serve the person you seek restrained. You must also give copies of the temporary order to the police in the city where you live and work. Once the person restrained is serviced with the order (or was in court when it was granted), he or she cannot contact you. If the restrained person contacts you, he or she can be charged with a crime. The temporary order is only good until to the hearing date; it officially expires on that date unless extended by the judge or by agreement of the parties.
If your case is set for a hearing, you must be prepared to put on evidence that would convince a court to grant your request for a restraining order. You need to get all the evidence you can. This includes witnesses who can testify to violence or threats and voice mails or emails that prove threats or harassment. The court needs to see evidence of legitimate fear or danger based on previous behavior of the person you want restrained. Although there are extremes, annoyances or disturbances usually do not suffice. Since this is considered a trial, you should educate yourself on appropriate court conduct or hire a lawyer with trial experience to help you.
Restraining orders literally deprive people of constitutional rights and limit their behavior. If violated, the order can result in criminal charges and jail time. The person seeking such an order or defending against one should understand that the court has the discretion to award the winning party’s attorney fees and costs.
Reach Out to an Experienced Criminal Lawyer in Ventura, California
If you feel the need to be protected from someone, it’s well worth it to make sure that it’s done correctly by a Ventura criminal defense attorney at The Law Offices of Bamieh & De Smeth. If you have been served a restraining order, you need to recognize you will lose rights if you do not challenge it. However, if you do challenge it, there are attorney fees and other expenses. In either circumstance, consider getting professional legal representation to protect yourself and your rights.