Restraining orders back your boundaries with the power of the police and the courts. You can obtain a restraining order for conduct that may not amount to a crime. The Court can grant you a domestic violence restraining order (DVRO) or civil harassment restraining order (CHRO) that lasts up to 5 years.
Free, Easy Restraining Orders: Call the Police
The easiest way to get a restraining order is to call the police when you have been the victim of a crime. If police determined a domestic violence offense occurred, they will likely offer you an emergency protective order (EPO). These only last a few days, but if the district attorney files the case, you can request a stay-away order from the court while the case is pending, and if the person is convicted, the judge will grant you a restraining order. You will pay no attorney fees and will not have to fill out any paperwork on your own. This is the easiest way to obtain a long-term restraining order, but it only works in a small percentage of cases where the DA files a case and obtains a conviction. Most domestic violence 911 calls do not end in a conviction.
Steps to Get a Domestic Violence or Civil Harassment Restraining Order
If the criminal process is too slow or not responsive to you, or you don’t want to involve the police, you’ll need to file a request for a restraining order in the Family Court. It is possible to handle this yourself with guidance from the self-help center, but the forms can be confusing and presenting your evidence effectively in court is challenging. Particularly if kids are involved, or if the other person has an attorney, you should get professional help. The same general process applies if you need a DVRO or a civil harassment restraining order (CHRO), but the forms are different.
STEP 1: GATHER EVIDENCE
Before you dig into the forms, get together any evidence of abuse or harassment that you have. The definition of abuse for a domestic violence restraining order (DVRO) encompasses any conduct that “destroys the mental or emotional calm” of the victim. For a Civil Harassment Restraining Order (CHRO), you can present evidence showing the other person is continually harassing or annoying you, or worse. These are broad definitions that covers conduct that may not amount to a crime.
Helpful evidence can include:
- Statements from friends or family who witnessed abuse or who you called after
- Text messages showing threats or abusive communications
- Text or call logs showing dozens of calls or angry or harassing texts sent in a row
- Police reports from all times you have called the police about this person
- Photos of injuries or any other photos or videos indicating abuse
STEP 2: FILL OUT THE FORMS
You can review the forms needed to obtain a civil harassment restraining order (CHRO) here and domestic violence restraining order (DVRO) here. You will be filling out a request for a long-term DVRO or CHRO as well as forms for the judge to grant you a temporary restraining order while you wait for the hearing on your restraining order. You can include all of the necessary information on the forms, but if you hire an attorney, she will help you organize your story into a written declaration supported by exhibits so that all of your evidence flows in an easy-to-read and compelling way.
PRO TIP #1: ATTACH A DECLARATION AND EXHIBITS On your forms, write “Please see attached declaration” where the forms ask you to describe why you need a restraining order. Entitle a document “Declaration in Support of Restraining Order Request.” Write out, in numbered paragraphs, the instances of abuse the person has committed against you. If you have photos or other evidence supporting your allegations, write after your summary of the incident “(See Exhibit 1),” or whichever Exhibit number applies. Number each of your exhibits separately and place a cover sheet over each one to identify it (Exhibit 1, Exhibit 2 etc.)
PRO TIP #2: LIST ALL INCIDENTS UP FRONT Err on the side of over-including incidents of abuse in your DVRO or CHRO request. For a DVRO, if you have kids, be sure to include the times abuse occurred in front of the kids. Remember, abuse includes any conduct that “destroys” your “mental and emotional calm.” If you bring up new allegations not mentioned in your initial filing later, you may be questioned as to why you failed to mention that from the beginning.
PRO TIP #3: ASK TO EXCUSE NOTICE Include a request to excuse notice so that you only have to serve the restrained person after your temporary restraining order is granted, if you’re concerned about how they may respond. It is better to effectuate service when you already have the protection of a temporary restraining order in place.
STEP 3: FILE YOUR PAPERS AND SERVE
Once you have completed your DVRO or CHRO “packet,” you can file it with the court. Then you wait for the judge to grant or deny your request for a temporary restraining order and to set a hearing. Once you get the judge’s order, you need to serve the person you want restrained. You can hire a private process server to accomplish this or reach out to the sheriff to request service.
STEP 4: PREPARE FOR AND CONDUCT THE HEARING
The judge will give you a hearing date on your request for a restraining order. If you need more evidence from the opposing party, you can submit discovery requests. A deposition can be particularly helpful leading up to a restraining order trial. It is best if an attorney can help you with the discovery process, but you can skip it altogether if you want to simply present the evidence you have at trial, or you can try to send discovery requests yourself using this information.
If you hire an attorney, she will organize your exhibits before trial and file a document with the court outlining the legal arguments supporting your restraining order request and summarizing your evidence. If you represent yourself, be sure to at least have your exhibits clearly numbered and organized, with a table of contents so you can find them quickly. Print out three copies of your exhibits so you, the Court, and the opposing party have a copy (four is best so the court clerk has a separate copy). If you have an attorney, she will discuss with you beforehand your trial strategy including which witnesses to call, what evidence to introduce, and what arguments she will be making. If you are representing yourself, see this guide.
STEP 5: SERVICE, CUSTODY, AND ATTORNEY FEES
If you win the trial, you will prepare one more form for the judge to sign finalizing the terms of the restraining order. Typically you’ll need to serve the restraining order on the restrained person. You can call the sheriff or a private process server for help. If you have kids, a DVRO affects custody rights and the restrained person will not be able to share joint custody of the kids until he or she has overcome a presumption that joint custody is bad for the kids. If you had an attorney for your DVRO trial, the court is required to order the other party to reimburse you for your attorney fees and costs, subject to his or her ability to pay. Attorney fees may also be awarded in CHRO cases.
Defending Against Restraining Order Requests
If you have been served with a temporary restraining order and the other party has a lawyer, you should hire an attorney ASAP, unless you do not care if the other party obtains a long-term restraining order. Remember, restraining orders affect your gun rights and can show up on background checks. Most importantly, if you have kids with the other person, a DVRO will affect your custody situation.
If the judge has already granted a temporary restraining order, do not fear. You can still win the trial and defeat the long-term restraining order if the facts are on your side, particularly if the other party has been abusive to you.
The best defense to a DVRO is…a DVRO.
It is not uncommon for the more abusive partner in a relationship to get to court first and request a DVRO. Perhaps you both have tempers and sufficient evidence to convince a judge that the other person is abusive towards you. In this situation, if you are served with a temporary restraining order, you should immediately prepare your own request for a restraining order in addition to filing your response to the other person’s request for a restraining order.
Without filing your own DVRO request, at trial, the judge only has to decide if the other person has presented evidence showing it is more likely than not that you have done things to “destroy” the other party’s “mental and emotional calm.” If you file a DVRO request, however, the judge has to determine which one of you was the “primary aggressor” in the relationship, or whether one of you acted primarily in self defense. In “toxic” relationships, where both parties have dirt on each other, a trial on competing DVRO requests can end in a denial of both restraining order requests, or sometimes the person who sought a restraining order first ends up as the only restrained party. Rarely a judge will grant mutual restraining orders. You do not get the benefit of the judge having to identify the “primary aggressor” unless you request a DVRO.
Kids and DVRO’S
In nasty custody disputes, one parent will sometimes seek a DVRO without good reason as a means of getting immediate custody of the kids. This can be devastating not just for the restrained parent but for the children, who share a close bond with both parents, or perhaps only with the restrained parent.
When the court finds that domestic violence has occurred in a relationship, either between the partners or against the children, Family Code section 3044 creates a presumption against joint custody for the perpetrator. To overcome this presumption, the perpetrator has to demonstrate that joint custody is in the children’s best interest. This can be accomplished by:
- Completing domestic violence and parenting classes
- Complying with probation terms, if applicable
- Not violating the terms of the DVRO
- Not committing any additional domestic violence
If you have been served with a temporary restraining order, your child or children may be immediately removed from you, at least until the trial on the long-term DVRO. It is critical you hire an attorney right away to restore your rights and to minimize the damage that can occur while you wait for the trial on the long-term restraining order. Ask your attorney whether filing a competing DVRO request would make sense in your situation. This can sometimes be the fastest way to get your kids back.
If you are unsure whether or not you need an attorney or if you have other questions, give us a call for a free consultation.
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