When one party asks for a civil harassment restraining order in court, he or she must file court forms telling the judge what orders they want and why.
See Below > How to File a Restraining Order
What happens after the filing of a request for a restraining order varies from court to court, but the general steps in the court case are:
- The person wanting protection (“the petitioner”) files court forms asking for the civil harassment restraining order.
- The judge will decide whether or not to make the order, by the next business day at the latest. Most of the time, the judge decides on the day the petition is filed. This hearing is usually handled “ex parte,” without the need to give to give notice to the other side (a declaration will need to be signed, attesting to the fact that the petitioner is in fear that giving notice would intensify the behavior that led to the restraining order request).
- Regardless if the judge grants the the temporary restraining order, the clerk will set a date for a hearing.
- If the judge grants (gives) the orders requested, he or she will first make “temporary” orders that only last until your court date. The court date will be on the first page of Form CH-109 (see below for a link to this restraining order form). These temporary orders can include issues, such as:
- Ordering the restrained person to have no contact (including no phone calls or e-mails) with the protected person (and other protected people); or
- Ordering the restrained person to stay away from the protected person (and other protected people).
- Once the paperwork is received back from the clerk. it is the responsibility of the petitioner to have the respondent served with all relevant documents (a copy of the packet received from the clerk – the clerk will provide what is essentially a service copy). See below for information regarding service of temporary restraining orders and service of notice of restraining order hearings).
How to File a Civil Harassment Restraining Order
IF YOU ARE IN DANGER, CONTACT THE POLICE IMMEDIATELY – LAW ENFORCEMENT CAN OBTAIN AN EMERGENCY PROTECTIVE ORDER 24 HOURS A DAY.
- Both sides go to the court hearing.
- If the protected person does not go to the hearing, the temporary restraining order will usually end that day and there will no longer be a restraining order.
- If the restrained person (“the respondent”) does not go to the hearing, he or she will have no input in the case and his or her side of the story will not be taken into account.
- At the hearing, the judge will decide to continue or cancel the temporary restraining order. If the judge decides to extend the temporary order, the “permanent” order may last for up to 5 years.
A civil harassment restraining order is the most commonly filed restraining orders and is the type of restraining order that is filed when other types do not apply. This page discusses how to file a civil harassment restraining order only. We also provide information and explanations about domestic violence restraining orders, workplace violence restraining orders, elder abuse restraining orders and restraining order appeals.
Form CH 100 → provides the judge with the details of your particular circumstances, and what you are asking the court to do.
Form CLETS-001 → provides law enforcement with information about the person you are seeking to restrain.
Form CH-109 → informs both you and the party you are seeking to restrain when to come to court for the hearing.
Form CH-110 → requests for a temporary restraining order until the hearing date.
Form MC-031 → used for any statements of witnesses that will support your side of the story.
“Harassment is unlawful violence, a credible threat of violence, or a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose. The course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress…”
A “credible threat of violence” is a “knowing and willful statement or course of conduct that would place a reasonable person in fear for his or her safety or the safety of his or her immediate family, and that serves no legitimate purpose.”
A “course of conduct” that seriously alarms, annoys, or harasses a person and serves no legitimate purpose is a “pattern of conduct composed of a series of acts over a period of time, however, short, evidencing a continuity of purpose, including following or stalking an individual, making harassing telephone calls to an individual, or sending harassing correspondence to an individual by any means, including, but not limited to, the use of public or private mails, interoffice mail, fax, or computer e-mail. Constitutionally protected activity is not included within the meaning of ‘course of conduct.”
There are several common restraining order mistakes that result in a petitioner’s request being denied by a judge. Requests that do not allege a pattern of conduct will be usually denied. A judge is not likely to grant a restraining order based on one incident of harassment. There must be a pattern of similar incidents for a judge to grant a restraining order (exceptions always exist – if the respondent’s conduct is so egregious but only occurred once, a judge can and sometimes will issue a restraining order; the seriousness of the conduct is a major factor).
Another common issue that results in denial of a restraining order request is the lack of specificity. It is not enough for a petitioner to allege that a fight occurred. For a restraining order to be granted, the dates, times, details, and locations of the conduct must all be provided. Evidence, such as photographs or videos of the incident or injuries should be preserved whenever possible. Relevant witnesses must be in court and ready to testify or must be issued a subpoena so their absence cannot be blamed on the party seeking to have them testify. A clear connection must be established between the harm and the alleged conduct of the respondent.
Typically, a judge will grant a well-pleaded restraining order request that describes a pattern of harassment. The benefit of the doubt is commonly given to petitioners, as judges are concerned about ongoing harassment. As discussed above (and below, when considering whether to hire a restraining order attorney), physical evidence or verbal testimony from witnesses can be a major benefit and can make the difference between an order being granted and one being denied.
This website is for informational purposes, always seek the help of an attorney when requesting or contesting a restraining order.
A regular problem many people who file a civil harassment restraining order request face is that they have, especially when attempting the process on their own, requested the incorrect type of order. For example, if the petitioner and respondent do not live together and are not dating, the petitioner should still file a domestic violence restraining order request and not a request for a civil harassment order if they have ever been in a romantic relationship in the past.
While the type of requirement discussed above seems counterintuitive, the courts have determined that if two people were ever in a dating relationship, any restraining order request between them should be filed as a domestic violence request. Further, many people are under the misconception that if an employee seeks a restraining order against another employee, that a workplace violence restraining order should be requested. However, this is also incorrect: only an employer can file a workplace violence request and it must be made on behalf of an employee.
File the Documents
Before going to the courthouse, the person seeking the restraining order (the “petitioner’) is required to give the person who has threatened or injured the petitioner (the “respondent”) advance notice that he or she is going to ask the court to issue a Temporary Restraining Order (a “TRO”) against the respondent unless the petitioner believes it would be dangerous to do so.
If the petitioner believes that notifying the respondent will escalate the violence and/or harassment, the petitioner may proceed without giving notice of the temporary restraining order filing to respondent. In order to proceed without giving notice, petitioner must include Form FAM-018. Only the second page of the form needs to be filled out and submitted. Petitioner should check the first box under #1, stating that the petitioner is afraid that the violence would reoccur if notice was given to the respondent.
The petitioner should attempt to tell the respondent, either by telephone or in person, at least 24 hours in advance that he or she will be seeking a temporary restraining order, and the date, time, and place (i.e., the address of the courthouse and the department number) that the petitioner or his or her attorney will be seeking the order. If the petitioner is unable to reach the respondent, he or she or his or her attorney may try to reach the respondent’s attorney or someone else who would be able to give the respondent notice of your attempt to get a temporary restraining order. If the petitioner is unable to give the respondent this notice, he or she may ask or hire someone else to provide that notice.
The judge will then review all filed documents and may ask questions concerning the alleged behavior. If the judge determines that there is sufficient cause to grant the temporary restraining order, the judge will sign the temporary restraining order and Notice and a date will be set for a hearing in approximately two weeks. After the judge signs the temporary restraining order and Notice, the petitioner or his or her representative can go to the Superior Court filing window and give the clerk the following: the original and all of the copies of the Request, the temporary restraining order, and the Notice; and the original and all of the copies of any other forms used.
The petitioner will receive a hearing date and the judge will review Form CH-110 and sign it if a temporary restraining order is granted. The judge may also make changes to the parameters of the temporary restraining order request.
The temporary restraining order is effective only until the date of the hearing concerning the permanent order. The court must grant a hearing date within 21 to 25 days of filing a restraining order. The respondent has an automatic right to 1 mandatory continuance for another 21 to 25 days upon request.
This will extend the time period of the temporary restraining order for the time of the continuance, meaning that if there is a continuance (even a mandatory extension requested by the respondent), the temporary restraining order will remain in effect until the new permanent restraining order hearing date.
The respondent’s right to this type of continuance (one) is absolute and there is not reason required to make the request. If a restraining order continuance made by a respondent is denied without good cause, there are grounds for appeal. However, most judges that hear restraining order cases are very aware of the right of the respondent to one continuance and grant those continuances without questioning the attorney. If the case has been continued before, or if it is the petitioner that is requesting the continuance, there is no automatic right to a continuance and whether or not to continue the restraining order hearing is within the judge’s discretion.
Restraining orders can be filed with the court by paying the $435 filing fee. However, domestic violence restraining orders do not have a fee. In Civil Harassment cases, the filing fee can be avoided if the petitioner alleges that the restraining order request is based on actual violence, the threat of violence, or stalking. If the petitioner is the victim of violence, threats, or stalking, that information must be clearly stated in the Description of Harassment section of the petition. Also, boxes a) and b) of section 13 of Form CH-100 must be checked to let the judge know that the petitioner is requesting a free filing due to the respondent’s actions, rather than due to an inability to pay the fee.
If the judge agrees that the fee should be waived based on the conduct of the respondent, the judge will include that ruling in the paperwork. If the judge disagrees, and rules that the petitioner must pay a filing fee, the petitioner must go back to the clerk’s office and either pay the fee or submit the fee waiver paperwork to the clerk. Further, if actual violence is alleged in a civil harassment restraining order hearing, the sheriff will serve the temporary restraining order (if applicable) and the notice of the permanent restraining order hearing at no cost.
Fee waivers are available for those who qualify. Partial and full fee waivers can be granted by the court for financial reasons. If you are receiving public benefits, are a low-income earner, or do not have enough income to pay for your household’s basic needs and your court fees, you may ask the court to waive all or part of your court fees.
Form FW-001 will determine if you qualify. You can then fill out Form FW-001 to request that the court grants your fee waiver. Also fill out Section one, two and three of Order on Court Fee Waiver, Form W-003. You will file all of these documents with the clerk, along with the other documents you are filing (complaint, petition, answer, etc). At some point, the court may order you may be to verbally answer questions about your ability to pay court fees and costs and to provide proof of eligibility.
Once the fee waiver documents are filed, if applicable, you will receive an Order on Court Fees Waiver telling you if your request was granted or denied. This order will explain how to proceed: act quickly – you only have 10 days from the date the order is mailed to you to comply with the order or exercise your options if your request was denied.
Even if your fees are waived at first, you may have to pay them back later:
- If your finances improve you must tell the court within five days. Fill out the Notice to Court of Improved Financial Situation or Settlement (Form FW-010) and file it with the court. You may be ordered to repay any amounts that were waived;
- If you receive a judgment or support order in a family law matter you may be ordered to pay all or part of your waived fees and costs if the court determines that you can afford to pay. You can ask the court for a hearing if the court makes such a decision; or
- If you win your case, the other side may be ordered to pay your waived fees and costs to the court. The court will not enter a satisfaction of judgment until the fees and costs are paid.
- If you settle your civil case for $10,000.00 or more any waived fees and costs must first be paid to the court out of the settlement. The court will have a lien on the settlement and may refuse to dismiss the case until the lien is satisfied. A request to dismiss the case must reflect that the waived fees and costs have been paid.
- The court can collect fees and costs due to the court. If waived fees and costs are ordered to be paid to the trial court, the court can start collection proceedings. Finally, if the restraining order filing fee is waived for non-financial reasons, the respondent will not have to pay a fee to respond.
Serve The Documents
First, the person being served with the documents must be served personally. Further, a non-party (nobody who is seeking protection) must serve the documents – otherwise, service will be invalid.
The person you are seeking to restrain must receive a copy of all documents you filed with the court and receive blank copies of the following forms (the documents must be served by the deadline that the judge writes on documents [item 5; pg 2 CH-109]):
Once all the documents are properly served, you must file a valid proof of service with the court (CH-200). If the person not served/not properly served you can file a request to continue the court hearing and to re-issue the temporary restraining order (Form CH-115).
If you are asking for a continuance of the hearing date you also need to file Form CH-116. These new requests must be filed along with all other documents.
If actual violence is alleged, the Los Angeles County Sheriff’s Department will serve the papers for free. However, it often takes up to a week to complete service. If faster service is needed because the petitioner wants the restraining order to become effective immediately, it is preferable to effectuate service via a process server or private investigator. The respondent must be served with notice of the hearing more than 5 days prior to the hearing.
While a respondent must be served with the notice informing him or her of a permanent restraining order hearing, notice does not always have to be given prior to a request for a temporary restraining order. If the petitioner has a legitimate concern that he or she would be in physical danger if the future respondent became aware of the restraining order request. However, because a temporary restraining order will be in effect (if the conduct warrants the order) at the time the respondent is served with the temporary order and notice of a hearing on the permanent order, the respondent must be served. Contrary prior to the temporary order being issued, when the respondent is served as described above, a court order making contact with the petitioner is often already in effect.
Again, service must be made by someone other than a “party” to the case. This means that the petitioner or any person seeking protection under the restraining order cannot serve the respondent. Even if this were not the rule, because of the nature of restraining order cases, it is not advisable to have any more contact with a restraining order respondent than is absolutely necessary.
There is no traditional default proceeding in a restraining order matter (in traditional civil cases, special rules and procedures exist for default proceedings). In a restraining order hearing, if the respondent does not file an answer and/or does not appear in court, the judge will still require a restraining order petitioner to prove his or her case. The only advantage that a petitioner has when the respondent in a restraining order matter does not appear is that the petitioner’s evidence will not be contradicted by the respondent’s evidence and the respondent will not have a chance to cross-examine petitioner’s witnesses. While the petitioner’s chances are improved if a respondent does not respond to the served documents, many restraining order requests are denied even when the respondent completely ignores the paperwork and hearing.
Occasionally, difficulties arise when attempting to serve a restraining order respondent. It is never acceptable to skirt or otherwise subvert the service requirements. If a respondent is difficult to find and/or is avoiding service, which is common, the correct course of action is to request a continuance of the permanent restraining order hearing. Never file a false proof of service – this kind of act will not only harm your credibility in the restraining order hearing if and when the lie is uncovered, it is also a crime to file false documents with the court.
Restrained Person’s Response & Hearing
The other party may, after being served with your restraining order paperwork, file and serve a response. That response can include any possible defenses to the allegations contained in the request for a restraining order. If the respondent files the responsive paperwork and attends the hearing, the judge may still grant the order. His or her decision will be based on the nature of the allegations in the restraining order request, the defenses presented in the respondent’s responsive paperwork, and the testimony at the hearing.
The quality of the respondent’s defense will depend on multiple factors, some of which include the nature of the allegations, whether acts of violence or threats of violence occurred, how believable each side’s testimony is, and how reasonable the allegations seem given the evidence. As with petitioners, the quality of a respondent’s defense is also dependent on how believable it is. Similar to the petitioner, the respondent can be assisted by the testimony of witnesses he or she contends will disprove the petitioner’s allegations. Beyond eyewitness testimony, affidavits, photographs, videos, audio recordings, and other documentary evidence such as receipts, computer printouts, etc., can help in proving a fact or set of facts that the respondent believes will help his or her case or disprove the viability of a petitioner’s claims.
If the permanent restraining order is granted, you must file and serve Form CH-130 after it is signed by the judge on the other party. Again, another person over 18 years old and not a party to the action must serve the form on the respondent, and must be served personally, mailing this document is not sufficient. This is because the statutes outlining restraining orders do not allow for the initial notice of the hearing, in most cases the permanent restraining order hearing, to be served by mail. The reasoning behind this rule is that once the respondent is aware of the proceedings, he or she is aware if his or her obligation to continue to be updated about the case.
Other Types of Restraining Orders
Civil Harassment Restraining Orders are the most common type of restraining filed in California, likely because this type of order is the “catchall” and is the appropriate type of order when no other types of orders can be lawfully filed. This type of restraining order is discussed in detail on this page. How to fight a civil harassment restraining order is contained within other parts of this site.
The three other types of restraining orders (civil restraining orders, not criminal protective orders) have limits on who can request them, whereas a civil harassment restraining order can be filed by any person against any other person except when another type of request is more appropriate. It is common for individuals to file another type of restraining order request, only to be told that the proper type of request is a civil harassment restraining order request. Below are some of the rules outlining restraining order requests for types of orders other than civil harassment orders which make it clear why civil harassment requests are often the most appropriate type.
Contrary to what is normally believed, workplace violence restraining orders cannot be requested by one employee of a company against another employee or against an employer or manager. Workplace violence restraining order requests can only be filed by an employer on behalf of an employee or employees. A workplace violence restraining order cannot be filed by an employee – an employee must file a civil harassment restraining order if he or she wishes to request an order.
Often, this distinction is lost on employees who are being harassed or otherwise mistreated at work, and can lead to the rejection of an application. Further, because a major factor a judge considers when determining whether to grant a restraining order request is the recency of the harassment, it is always critical to file the correct type of retraining order request so that time is not wasted and a request does not become stale. This can, at times, mean the difference between an order being granted and one being denied – which can sometimes mean the difference between continued harassment and serenity. On the other hand, a restraining order respondent (the person against whom protection is sought can take advantage of an improperly filed restraining order request, no matter what kind of request it is, when defending a restraining order. That is why it is always important to have the assistance of an experienced restraining order attorney when seeking or contesting a restraining order.
A domestic violence restraining order can only be filed by a person against another with whom he or she has a qualified relationship (married partners, registered domestic partners, divorced individuals, separated individuals, two people who are currently dating or used to date, two individuals who have a child together, people who live together or previously lived together, a parent, a child, a sibling, a grandparent, a grandchild, or grandparent or grandchild-in-law). Individuals who are not involved or previously involved in one of the types of relationships described above can file a civil harassment restraining order.
While the conduct that would justify an elder abuse restraining order being issued is generally very broad, these types of restraining orders can only be requested by or on behalf of a person who is 65 years old or older or is disabled in some way (an elder abuse restraining order can be requested as a result of physical harm or financial abuse).
Not all conduct can justifiably lead to an elder abuse restraining order. The conduct that harms the elderly victim or disabled victim must be physical in nature, such as neglect, abandonment or mistreatment. Mental cruelty is also a valid reason for an elder abuse restraining order to be filed and granted. Unlike civil harassment orders, workplace violence restraining orders and domestic violence restraining orders, elder abuse restraining orders can be granted when financial abuse is present. For example, if a child, relative or caregiver of a mentally disabled person or elderly person is put in charge of buying a victim’s food, and the caregiver or relative embezzles money from the victim, he or she can be the subject of an elder abuse restraining order.
The penalties for violating an elder abuse restraining order can be severe. Separate criminal acts of elder abuse, aside from restraining orders, can also be filed. However, a misdemeanor conviction for elder abuse (non-restraining order violation) can only take place if and when it is proven that the defendant acted willfully or with gross criminal negligence. Further, mental anguish or physical pain on the part of the victim must be proven. A felony conviction for elder abuse can be sustained if the defendant acted willfully or with gross criminal negligence and personally subjected the victim to physical pain or mental anguish. Further, for a felony conviction to occur, it must be proven that serious bodily injury or death was reasonably likely to occur because of the defendant’s conduct to an elderly person.
If you are concerned about which type of restraining order is most appropriate in your case or if you are unsure whether someone requested the correct type of restraining against you, contact our experienced restraining order attorneys or call (213) 784-2489 for a Free Consultation.
How Long are Restraining Orders Valid?
A civil harassment restraining order may have a duration of not more than three years. These orders may be renewed, upon the request of a party, for a duration of not more than three years, without a showing of any further harassment since the issuance of the original order.
An elder abuse restraining order may have a duration of not more than five years. These orders may be renewed, upon the request of a party, either for five years or permanently, without a showing of any further abuse since the issuance of the original order.
A workplace violence restraining order may have a duration of not more than three years. These orders may also be renewed, upon the request of a party, for a duration of not more than three years, without a showing of any further violence or threats of violence since the issuance of the original order.
A domestic violence restraining order may have a duration of not more than five years. Again, these orders may be renewed, upon the request of a party, either for five years or permanently, without a showing of any further abuse since the issuance of the original order. The duration of the restraining order, especially in domestic violence restraining order cases, should not be confused with the length of probation in a criminal case.
Probation in a criminal domestic violence case (not parole, probation occurs when the defendant is granted probation and not sentenced to state prison) can last anywhere between one year and five years, which is the same amount of time a domestic violence restraining order may last. However, these two types of orders, both of which may include orders to stay away from the victim or petitioner, may begin and end and different times and do not run concurrently. Specifically, probation in a criminal case begins once a defendant pleads guilty or is convicted after trial. That event may not occur for over a year or two after the arrest, at which time a domestic violence restraining order may have been in effect the entire time. For a complete and accurate analysis of the length of time that any stay away orders will be in effect, always consult with an experienced restraining order attorney.
The lengths of that restraining orders may be valid for, discussed above, only addresses the maximum time that an order can be in effect. On the other end of the spectrum, there is no minimum amount of time that a judge can impose a restraining order for. While the maximum time a workplace violence restraining order and a civil harassment restraining order can be in effect is three years and the maximum amount of time an elder abuse restraining order and a domestic violence restraining order can be in effect is five years, judges can and often do impose orders for shorter periods of time.
If the conduct is not as inappropriate as in other cases or if the request asks for less time, courts will often not impose restraining orders for the maximum amount of time allowable. Typically, however, a judge will, if he or she is inclined to grant the restraining order in the first place, impose a restraining order for a minimum of one year. While judges do have the discretion to impose orders for shorter than one year, 12 months is typically the shortest amount of time that restraining orders are imposed for – anything less would likely not achieve the goal of separating the respondent and petitioner sufficiently.
Restraining Order Conditions
There are several conditions that a court can impose on a restraining order, depending on the type of order that is issued. The most common condition is a “no contact” order, which can be issued for all restraining orders. A “no contact” order means that the defendant listed on a criminal protective order or the restrained person named in a civil order, cannot have any contact with any protected person. Contact includes telephone, facsimile, email, text messaging, or sending messages to a protected person through a third party. This can result in the defendant or restrained person being forced to move out of a shared residence or being precluded from going to public places where the protected person often goes.
If the defendant or restrained person and the protected person have a child together, the court can include an exception to no contact orders that allows for peaceful contact during court-ordered visitation. A “peaceful contact” order allows the restrained person and the protected person to have contact with each other as long as the contact is harmonious. Usually, there is no stay away requirement in a peaceful contact order. A peaceful contact order prohibits a restrained person from hitting, striking, threatening or harassing the protected person. This type of order also prohibits the defendant or restrained person from destroying or damaging property, blocking the protected person from leaving the house or using a phone and arguing with the protected person in a loud voice.
Another common condition for all restraining orders is a “stay away” order. Stay away orders require the restrained party to stay away from the protected person or persons and/or specified locations such as the protected person’s home, workplace, school, child care facility, or vehicle. Restrained individuals must not take any action to obtain the protected person’s address or location or the address and location of their family members, caretakers, or guardian without good cause. Defendants and restrained persons may also be ordered to stay away from animals included in the protection order and are prohibited from taking, transferring, selling, concealing, attacking, threatening, harming or otherwise disposing of the animals.
Statutorily contained within all restraining orders is the condition that restrained persons and defendants are prohibited from owning, possessing, buying, or receiving firearms or ammunition.
Restrained persons must sell to or store firearms and ammunition with a licensed gun dealer or law enforcement agency within 24 hours of being served with notice of a restraining order or criminal protective order. They must also file a receipt with the court showing compliance with this order within 48 hours of receiving the order.
A person subject to any temporary restraining order, permanent restraining order, or criminal protective order may be required to relinquish all firearms and ammunition if the order so states. A restrained person will be required to pay storage charges to the gun dealer or local law enforcement agency.
If the restrained person so desires, they are able to sell their stored firearms and ammunition to a licensed gun dealer. The gun dealer must present the law enforcement agency in custody of the firearms with a bill of sale and will be given possession of the firearms within five days.
At the expiration of the restraining or protective order, the firearms will be returned to the restrained person within five days. However, the firearms may not be returned if they are deemed stolen if the restrained person is prohibited from possessing firearms, or if a subsequent order is issued against the restrained person. In these cases, the firearms will be sold to the original owner, if ascertainable, or a licensed dealer.
An exemption from the requirement to sell or store all firearms and ammunition may be granted by the court if the restrained person requires the firearm for continued employment and cannot be reassigned to a different position. In this case, the restrained person may only possess the firearm during work hours and during travel to and from their place of employment.See below for a more detailed explanation of the rules concerning weapons and restraining order violations.
Domestic Violence Restraining Orders have specific conditions that can and often are issued. The defendant can be ordered to follow child custody and visitation orders, pay child support, pay spousal support, pay certain bills, not make changes to insurance policies, not incur large expenses or make significant changes to the protected person’s property, or return certain property. Workplace Violence Restraining Orders also have specific conditions. An employer who requests a restraining order on behalf of an employee who needs protection can protect other employees at the same time by including others in the order.
In cases involving divorced people who have children in common, the restraining order conditions imposed can be impacted by the divorce, custody and visitation order in a divorce case.
If children are involved in a family law case, even if a restraining order case is ongoing, the judge will have to determine custody and visitation for each child. In California, there are two types of custody: physical and legal custody. Physical custody determines which parent the children live with. This type of custody can be sole or primary – children live mostly with one parent and have visitation times with the other. Physical custody can also be joint – children live with both parents.
The second type of custody is legal custody (which parent gets the final say in decisions regarding the children such as health care, religious activities, travel, and extracurricular activities). Legal custody can be sole – one parent makes all of the decisions or it can be joint – both parents make decisions together. The court determines custody base on the best interests of the children. To determine what is in the children’s best interest, the judge will look at many factors such as the children’s age, the children’s health, the relationship between each parent and the children, the ability of each parent to raise the children, the parents’ history of violence if any, the parents’ history of drug and/or alcohol abuse if any, and the children’s comfort level with where they currently reside.
Visitation can also impact restraining order conditions. Visitation is awarded to the parent without physical custody. There are four different ways in which a court can determine visitation:
- No visitation – the court can reject visitation if the noncustodial parent would put the children in some sort of risk/danger;
- Supervised visitation – if the court determines that the children’s safety requires another adult to be present. This happens in cases of past history of abuse, or when the noncustodial parent and the children do not have a relationship;
- Reasonable visitation – if the court determines that the parents have a civil enough relationship to work out visitation schedules on their own, the court will order reasonable visitation so the parents can work out a plan that is convenient for everyone;
- Scheduled Visitation – the court can create and enforce a visitation schedule that must be followed by the parents.
Default Civil Harassment Restraining Orders
If the respondent has been properly served and does not appear at the restraining order hearing, the judge will review the request and supporting paperwork, and determine if there is enough evidence to grant a restraining order. The judge may also ask petitioner to testify under oath and under penalty of perjury, that everything in their request is true.
If the judge determines that the request is insufficient, the judge may require further testimony from the petitioner and possibly additional witnesses even though the respondent is not in court. If a default restraining order is granted, the judge will fill out and sign the order, and the petitioner will have to serve that form on the respondent. The restraining order is not valid or enforceable until the order has been served and the proof of service has been filed with the court.
Obviously, for a respondent (the person against whom protection is sought), not attending a restraining order hearing and/or not filing responsive paperwork is not an admission of guilty but can certainly influence a court’s decision. Any trier of fact (the judge making the factual determination regarding whether the order should be granted) will be influenced by testimony or the legal contentions made by a respondent. An absence of that type of testimony or legal response will force a judge to consider everything the petitioner is saying as true, unless obvious and glaring inconsistencies or physical impossibilities exist.
An important exception to this general strategy exists: when testifying or submitting a response to a restraining order request would somehow negatively impact a criminal case where a respondent is charged with the same conduct or conduct related to the allegations in the restraining order request. In this situation, it can and often is advisable to contest the restraining order hearing on legal, not factual grounds.
It can also be advisable, in many instances to simply invoke the respondent’s 5th amendment rights against self incrimination and not testify or contest the restraining order request at all. While this may seem like an imposition, a restraining order, absent a violation, is not a crime, whereas an admission in a restraining order matter that is connected to a criminal case can lead to a criminal conviction and severe consequences. Even if a criminal case has not been filed or the police have not been contacted, it can still be advisable for a restraining order respondent to invoke his or her 5th amendment rights under the United States Constitution.
If responding to a restraining order allegation will necessarily require a respondent to lie under oath or admit conduct that could be interpreted as criminal, the proper move is usually to fail to respond, regardless of whether the police are involved or not. Further, police could have previously been contacted by a petitioner who could have been told that not enough evidence of a crime exists and that a restraining order hearing, with the alleged perpetrator making statements under oath, could provide the evidence needed to charge the respondent criminally.
The reverse can also be true; a petitioner, whether in his or her pleadings (the forms needed to file the restraining order), on direct examination, or on cross examination by respondent’s attorney, can open himself or herself up to criminal liability depending on the nature of any admissions made. This is why no matter what side you are on, a qualified restraining order attorney can assist you with the hearing itself and with other issues, seemingly tangential to the restraining order case but nevertheless very important.
Motion to Vacate Default Civil Harassment Restraining Orders
Default restraining orders are often granted because the respondent has not been served, and therefore does not know when they need to appear, or even that a case has been filed against them. In such cases, a petitioner files a false or incorrect proof of service with the court, and the judge has no way of knowing anything other than what the petitioner is claiming – that the Respondent has been served and has not appeared. A respondent who has not been served often finds out about the restraining order when they receive a copy of the actual order after hearing.
At that point, the respondent’s options are limited – the respondent can either take no action and accept that there is a restraining order against them, or file a motion to vacate the order. A motion to vacate the order can be based on multiple factors, but the most common is lack of proper service. The motion must be properly formatted and include a summary of the case, and evidence (such as a declaration from the respondent) showing that the respondent was never served with the restraining order paperwork. The motion may be served on petitioner by regular mail rather than personal service.
If a respondent filed a motion to vacate a restraining order, and the court grants the motion and sets the order aside, the court will start the restraining order case from the beginning – requiring that the Petitioner serve that paperwork on the respondent, file a proof of service, and appear at a new hearing date to argue whether or not the restraining order should be granted.
As a respondent, it can be very frustrating to have to spend money to hire an attorney to vacate a fraudulent filing by a process server when it seems that the fraudulent party should be the side that pays for the abuse of the process. That frustration is only compounded by the notion very difficult and regularly occurring situation where the underlying claim on which the restraining order is based is also not true or unfounded. In that case, a petitioner must attempt to have the judgement undone, then fight the case again, all the while paying money for acts that he or she is not responsible. However, there are remedies.
First, Business and Professions Code § 22358 requires all process servers to have a certificate and register with the state. That certificate and registration can be suspended or revoked if and when it is determined that the process server has engaged in conduct as a process server that does not comply with the Code of Civil Procedure and with any other California or federal statute or law. Penalties can be even more severe if it can be established that an “abuse of process” took place on the part of the process server. Business and Professions Code § 22353 also requires that all process servers post a bond of $2,000 that can be recovered by any party injured by that process server’s actions if the process server acted in violation of Business and Professions Code § 22358.
Criminal Protective Orders vs Civil Harassment Orders
Civil harassment restraining orders and domestic violence restraining orders are issued to protect one or more people (the “protected person or persons”) from another person (the “restrained person”). The civil restraining order is issued as part of a legal action that is started by the protected person. The District Attorney is not involved. Civil harassment restraining orders may include stay-away orders, no contact, or peaceful contact orders. The length of the restraining order is typically three years, or five years for a domestic violence restraining order.
On the other hand, a criminal protective order (“CPO”) is issued in a criminal case to protect an individual (the “protected person”) from a criminally charged defendant. The protected person is also sometimes a witness to, or victim of, a crime. Such orders are routinely issued in cases of domestic violence. The CPO is initiated by the prosecuting attorney’s office pursuant to the California Penal Code (§ 136.2). However, judges have the discretion to grant or deny the order. A CPO may require the defendant to stay away from and have no contact with the protected person, or it may require that if there is any contact, such contact is peaceful in every way.
A CPO will remain valid even if the defendant is in custody. A protective order is typically issued at the time of arrest and then again at arraignment to avoid issues of personal service. Once the defendant has been convicted and sentenced, the CPO can be terminated and the same conditions can be imposed as terms of probation if probation was granted.
The length of the CPO will be determined based on the reason for the issuance of the order. If the CPO was issued to protect a victim or witness from harm or intimidation to testify in a criminal case, the length of the CPO will be three years. If the defendant is convicted of a sex offense or domestic violence crime, the judge can issue a protective order preventing the defendant from contacting the victim for 10 years. Criminal protective orders are valid for up to 10 years and may be reissued by the court when the defendant is sentenced to state prison or county jail or if imposition of sentence is suspended and the defendant is placed on probation. Typically, if no criminal protection order is issued at sentencing, either a “no contact” or “peaceful contact” order becomes a probation term.
Motions for Attorney’s Fees
The prevailing party in a Civil Harassment restraining order case (and a Workplace Violence restraining order case, Elder Abuse Restraining order case, and a Domestic Violence restraining order case), if they were represented by an attorney, can request to have their attorney’s fees paid by the other side. The petitioner is the prevailing party if any of the orders requested have been granted by the judge. The respondent is the prevailing party if the request for restraining order was denied.
The prevailing party usually has 60 days after the judge’s ruling in the restraining order case to file a motion for attorney’s fees. However, some judges will impose their own deadlines, so it is always a good idea to ask the judge when such a motion should be filed.
The motion for fees generally will not state the actual amount of fees incurred, or paid to counsel by the prevailing party. Rather, the motion is usually based on “reasonable attorney’s fees,” calculated by multiplying the reasonable number of hours spent by an attorney on a similar matter by the reasonable hourly rate for an attorney with a level of expertise similar to the attorney that handled the matter on behalf of the prevailing party.
The motion for fees must be accompanied by a declaration from the attorney that handled the matter describing the attorney’s education and experience level for purposes of calculating the hourly rate, as well as the reasonable time spent on this matter, and discussing the reasonableness of the amount sought.
The motion for fees must also contain a hearing date, which is obtained from the court clerk prior to filing the motion, and a proposed order for the judge to review, modify if necessary, and sign. The motion for fees has to be served on the other party at least 15 court days before the hearing, to give the other party an opportunity to file a written response to the motion. The response generally argues about the amount of time spent on the case and the reasonableness of counsel’s hourly rate.
At the hearing date, the judge will review the filings, hear arguments of counsel, and decide whether or not attorney’s fees are warranted, and if so, how much. For prevailing petitioners, judges will usually grant motions for fees where the respondent’s conduct is especially egregious. For prevailing respondents, judges tend to grant motions for attorney’s fees in cases where the petitioner’s request for restraining order is frivolous.
If the motion for attorney’s fees is granted, the losing party generally has 30 days to pay the amount that the judge ruled must be paid. If the losing party fails to comply with the judge’s order, they could be liable for interest and eventually they could have their wages garnished, their accounts levied, and liens placed on any real estate owned by the losing party.
Restraining Order Appeals
In a restraining order appeal, new evidence or testimony is not permitted so the tools at the petitioner’s disposal are much more limited. Common reasons one side may file an appeal are that the law was somehow not properly upheld in his/her trial, that the available evidence was not adequately reviewed, or that the fact finders didn’t follow procedures in coming to their conclusions.
Another common reason that restraining order litigants appeal (and are sometimes successful) is if a request for a continuance by a respondent is denied (a restraining order respondent is entitled to one continuance of the initial restraining order hearing and does not have to provide any reason or establish good cause for that continuance). A denial of this continuance, no matter the result of the hearing, is always grounds for appeal and is always reversed on appeal.
Written notice of an appeal of restraining order rulings must be filed in the restraining order courtroom where the appealable order took place within 60 days of the permanent restraining order being issued. Again, decision about the facts in the case, such as the believability of witnesses, which side presented more / stronger evidence, and any similar issues cannot be appealed. A failure to bring evidence to court or acquiring additional evidence that could have been discovered prior to the hearing are not valid grounds for appealing a restraining order. Valid grounds would include the improper exclusion of evidence that one side wanted to present or an incorrect application of the standard for determining whether a restraining order should be granted.
If a restraining order is denied and additional acts on the part of the respondent happen again, an appeal does not need to be filed and should not be filed. Instead, this presents a situation where a new restraining order should be filed. While there is a section in the restraining order forms inquiring as to whether there are any previous cases involving a restraining order between the parties or whether there are any related cases, those inquiries are seeking to provide the judge with context and insight into the case and not as a disqualifying piece of information.
Therefore, if you have had a restraining order denied and new conduct occurs, you may still be entitled to a restraining order. The corollary is also true: if you were a respondent in a restraining order hearing and that restraining order was denied, you do not have the freedom to engage in unlawful acts – a new request can be filed against you at any time.
Modification of a Criminal Protective Order
Although criminal protective orders (“CPO’s”) preempt all other types of restraining orders (in other words, CPO’s must be complied with first before any other orders), its terms can be modified. CPO’s vary in the degree of restrictiveness, so either party is permitted to request that the level of restriction be heightened or reduced. In order to do so, a Petition for Modification of a Criminal Protective Order application (form only available in Orange County, not standard form in Los Angeles County for CPO’s) can be filed with the respective court and noticed to the prosecutor. This request allows a party to modify terms such as the means of permitted communication (personal, telephonic, written, electronic), whether contact (either through a third party or directly) should be permitted, or the distance that a respondent is permitted to be within of a petitioner.
How a Petitioner Can Lift a CPO
The removal of a CPO is not automatic and is up to the decision of the judge presiding over the underlying criminal case. The courts urge that when petitioners wish to remove a CPO that they be absolutely certain in his/her decision to do so. The first requirement for doing so is that the petitioner agrees and prove that he/she is freely and voluntarily making this request to remove the CPO. The reason for making this inquiry is to ensure that the petitioner is not in some way being coerced or threatened into making the request. Subsequently, the petitioner will be questioned on whether he/she has consulted with a victim specialist (a government official whose obligation it is to provide victims with various types of support).
After the court has determined that the petitioner is certain about his/her decision and has thoroughly discussed the decision with a victim specialist, then the petitioner must sign a modification petition under penalty of perjury. After that is accomplished the court still makes the decision regarding whether to terminate the CPO. The court will make this determination with the best interests of the protected person in mind, as well as anticipate any potential dangers/threats as a result of removing the order.
Why Restraining Orders Cannot be Filed Online
Restraining orders cannot be filed online. California law states that “a request for the issuance of a temporary restraining order without notice under this section shall be granted or denied on the same day that the petition is submitted to the court, unless the petition is filed too late in the day to permit effective review, in which case the order shall be granted or denied on the next day of judicial business in sufficient time for the order to be filed that day with the clerk of the court.”
Thus, before a restraining order petition can be filed with the court, a judge must review and sign it. This judicial approval requirement makes online filing of restraining orders impossible. Further, with the oftentimes urgent nature of restraining orders, petitioners should personally ensure that the court has received their request.
How to Fight a Civil Harassment Restraining Order
If someone is trying to obtain a Civil Harassment Restraining Order against you, they need to have you served with various forms. Service must be in person (more information regarding how to defend yourself against a civil harassment restraining order request). Having a restraining order issued against you can contain serious restrictions on your behavior, and violations of those orders can have consequences such as county jail (state prison in extreme circumstances where serious injuries and/or repeat violations have occurred) and/or substantial fines.
Defending Other Types of Restraining Orders
You can attend the restraining order hearing yourself and present evidence to the judge showing that the other party is lying or that his or her allegations are not significant enough to warrant an order. If someone is seeking a restraining order against you, it is always best to have a qualified, experienced attorney who knows the Los Angeles area courts to defend you.
A restraining order is public record and can have an impact in the context of a background check and can also lead to a criminal charge if the order is violated. An existing restraining order can impact job opportunities and/or personal relationships and can often be contested. While there are sometimes reasons to assert the privilege pursuant to the Fifth Amendment to the U.S. Constitution and not contest a restraining order request, those situations are not very common – most restraining orders can and should be fought without any legal consequences.
Help Defending a Restraining Order:
This page deals with filing restraining orders, as do the links to the three pages below. The pages below deal primarily with what is required to file each type of restraining order. Therefore, they are valuable for determining the validity of the allegations. What actions to take once you or an attorney have made the decision that the allegations, IF true, are enough for a restraining order, you can focus on defending the substantive charges. If you have had a restraining order filed against you, you can read about defending all types of restraining orders.
Other types of restraining orders:
Domestic Violence Restraining Orders – these are the types of order that are requested if the sides are involved in a dating relationship, formerly involved in a dating relationship, were married, living together, have a child in common, or meet other familial criteria. It is critical to file your restraining order as a domestic violence restraining order when applicable to avoid a dismissal. Further, if a restraining order was requested against you and that order was improperly not requested as a domestic violence order, that failure to follow procedural rules could result in the case being dismissed.
Elder Abuse Restraining Order – orders that can not only be requested by a senior or on behalf of a senior (a person over 65 years of age), but can also be requested by or on behalf of someone with certain physical or mental capabilities.
Workplace Violence Restraining Order – the name of of this type of restraining order should be “Employer Requested Restraining Order” because its current name does not prevent the common misconception that this type of order can be requested by any person against a a co-worker – and it cannot. A workplace violence restraining order can only be requested by an employer on behalf of an employee.
If someone is seeking a restraining order restricting your behavior, he or she must properly file his or her motion as well as have you served (delivered) with the correct paperwork. He or she is required to have you served (the person seeking the order cannot serve you, it must be done by a party). Service of documents seeking a permanent restraining order cannot be sent by mail, they must be handed to you by a human being who is over the age of 18 and not a party to the lawsuit (cannot be a person seeking protection).
In addition to being served with documents that explain the allegations, you must be served with blank copies of several forms that will show you how and where to respond to the allegations. If service is not executed properly and all necessary documents are not delivered, a judge cannot lawfully issue a permanent restraining order.
You can be forced to defend a restraining order even if the temporary restraining order was not granted – petitioners are entitled to a hearing on the merits of the alleged harassment, abuse or other unlawful behavior. While it is a good sign for respondents when civil harassment restraining orders (or other types of restraining orders) are rejected at the initial asking, it is possible that those orders can and often are granted after a restraining order hearing. Sometimes, petitioners obtain more evidence or find new witnesses of conduct that would make a restraining order more viable. Other reasons exist for different conclusions between decisions at the temporary restraining order stage and the permanent restraining order stage:
- Judges, all with different personal opinions and decision making processes, can change or be transferred – the same judge may not decide the case at both states;
- Witnesses may be more believable while giving verbal testimony versus the written statements made in restraining order paperwork;
- Further, additional incidents of harassment or stalking by a respondent can take place (this is why if you are a respondent and are served with notice of a restraining order, it is always advisable to cease whatever conduct is alleged if the allegations are true, regardless of whether the temporary restraining order was granted); and
- Other reasons on a case by case basis.
Removing a Restraining Order
Other than the expiration of a restraining order, the most common way a respondent can attempt to remove a restraining order that has been placed on him/her is to file an appeal of the initial charge giving rise to the order. In an appeal, new evidence or testimony is not permitted so the tools at the petitioner’s disposal are much more limited. Some common reasons someone may file an appeal are that the law was somehow not properly upheld in his/her trial, that the available evidence was not adequately reviewed, or that the fact finders didn’t follow procedures in coming to their conclusions.
Unlike a lower-court level trial (where a judge determines the outcome of a case), in appellate courts, a panel of three judges will collectively examine the documents pertaining to a case, such as transcripts and any available evidence. After carefully reviewing the documents, the panel of judges will make a determination as to whether a restraining order has been wrongfully issued.
An appeal of a restraining order reverses the titles of the parties—the appealing party then becomes the petitioner (originally the respondent) and the protected person becomes the respondent. There are six appellate level judicial districts located throughout California where a petitioner can file an appeal: San Francisco (350 McAllister St., #1042), Los Angeles (300 S. Spring St., 2nd Floor, North Tower), Sacramento (914 Capitol Mall), San Diego (750 B. St., #300), Fresno (2424 Ventura St.), or San Jose (333 W. Santa Clara St., #1060).
Most importantly, the filing of an appeal (like the filing of a request for modification of a restraining order) does not automatically permit the petitioner to violate the standing restraining order in any way. This means the petitioner may not contact the protected person while the appeal is pending. The only point at which the terms of a restraining order may be disobeyed or ignored are when and if the Appellate Court has found grounds for dismissal of the restraining order.
Restraining Order Abuse
Restraining order abuse is a form of abuse of process or malicious prosecution in which a plaintiff applies for a restraining order for a purpose other than for the protection against violence or threats of violence.
It is relatively easy to falsify a restraining order request. Although lying to obtain a restraining order constitutes perjury, a felony offense, this crime is rarely prosecuted. There are no background checks for plaintiff’s filing restraining orders to see their patterns of abuse and how many restraining orders they have filed in the past. There is nothing to stop a plaintiff from refiling their restraining order petition if it is denied. It is also possible to get restraining orders against the same defendant in multiple jurisdictions.
Another factor contributing to restraining order abuse is the ease of obtaining one. Restraining orders are usually free and not time-consuming compared with a civil lawsuit for monetary damages. A judge will review the request within 24 hours and issue a decision ex parte (without all of the interested parties, with respect to the instant case, present), based on the petitioner’s allegation alone, along with any evidence they may present during the brief interview. Judges often error on the side of caution when granting restraining orders to avoid the possibility of injury or violence, which can lead to the granting of restraining orders where the conduct did not justify the order.
There are many motives for obtaining a false restraining order. A spouse may obtain an order against the other spouse to obtain sole child custody, sole ownership of marital property or pets, end an extramarital affair, or spitefully injure the spouse who divorced them. Restraining orders are also abused preemptively by stalkers and abusers to gain an advantage over their targets. They can also be used as a blackmail tool to encourage compliance with the blackmailer’s demands. There are a number of steps that defendants can take if they are served with a restraining order that they believe is false. Defendants should always go to the scheduled hearing. If defendants do not show up to the hearing, it is likely that the judge will issue a restraining order against them.
Another common tactic that some individuals employ is requesting a restraining order in hopes of gaining and advantage in a civil lawsuit, over money and is almost always done in the form of a civil harassment restraining order (in some cases, individuals allege workplace violence or domestic violence if the business dispute involves family members).
Even though reasons for granting a restraining order are clearly spelled out, some litigants choose to request a harassment order instead of requesting injunctive relief in the course of a civil suit. Judges are very reluctant to settle business disputes during restraining order hearings and are skeptical of those kinds of tactics. If a judge believes that one side is attempting to gain an advantage in a business dispute, absent actual harassment, the restraining order will be denied.
Defendants should gather all documentation and bring it to the hearing. Helpful documentation includes past injuries of either party, medical records, police calls, police or medical reports, pictures, and witnesses. It may also be beneficial to obtain a background check on the plaintiff or do a public records search for past restraining orders they were granted. At the hearing, defendants should provide all documentation and explain the situation to the judge. Consulting a lawyer may also be helpful. They will be able to represent you at the hearing and explain to the judge why the restraining order should not be granted. They may also be able to help stop the restraining order abuse by filing charges for malicious prosecution against the plaintiff.
How to Look Up a Restraining Order
In California, court case files are public records and subject to public inspection. California Rules of Court, rule 2.400(a) states that all papers in the court files may be inspected by the public in the office of the clerk. Rule 2.550(a) says that unless confidential or sealed by law, all court records are presumed open.
Restraining orders in Los Angeles County can be assessed online here. Each search incurs a public access fee. Using the “Civil Party Name Search”, search by name for court wide civil cases. Search by last and first names of a party to a case. If a record is found, the online service will return the following data: litigant name, case type, filing date, filing location, and case document images available for purchase. Information on cases involving minors is not available for public viewing.
Restraining Order Violations
Violations of restraining order violations carry penalties, the severity of which depends on the nature of the violation. Defending a restraining order with a qualified restraining order attorney is always the best course. Penal Code § 273.6 prohibits the intentional and knowing violation of a protective order and is a misdemeanor punishable by a fine of no more than $1,000, or imprisonment in a county jail of no more than 1 year, or both.
A violation that results in a physical injury is punishable by a fine of no more than $2,000, or imprisonment in a county jail of no less than 30 days or no more than 1 year, or both. However, if the defendant is imprisoned for at least 48 hours, the court may reduce/eliminate the 30-day minimum. In determining whether to, the court will consider the seriousness of the facts, whether there are additional allegations of the violation, the probability of future violations, the safety of the victim, and whether the defendant has successfully completed or is making progress with counseling.
Subsequent violations that have occurred within 7 days of any prior convictions for violations of a protective order and that involve an act of violence or “a credible threat” of violence can often require more severe penalties. A subsequent violation is punishable by a fine of no more than $2,000, or imprisonment in a county jail for no less than 6 months and no more than 1 year, or both. Again, if the defendant is imprisoned in a county jail for at least 30 days, the court may reduce/eliminate the 6-month minimum. In determining whether to, the court will again consider the seriousness of the facts, whether there are additional allegations of a violation, the probability of future violations, the safety of the victim, and whether the defendant has successfully completed or is making progress with counseling.
A subsequent violation, at a prosecutor’s discretion (although a judge can overrule this decision at certain stages), can also be charged as a felony violation (Penal Code § 273.6[d], known as a “wobbler” can be filed as a felony or a misdemeanor). Prosecutors are required to use their discretion and usually charge a violation of this code section as a felony when the conduct is especially severe, while charging misdemeanors if the violation is technical but not egregious. A violation of Penal Code § 273.6(d), when charged as a felony, can result in up to three years confinement in state prison.
Possession of Firearms
Individuals who are restrained by any protective order are prohibited from owning firearms, per California Penal Code § 29825. An individual can be convicted of violating Penal Code § 29825 if and when a prosecutor can sufficiently prove that the defendant:
- Purchased, received, or attempted to purchase or receive a firearm; and
- The defendant knew or should have known that he or she was subject to a restraining order, whether temporary or permanent, of any kind (civil harassment, elder abuse, domestic violence, and workplace violence).
If a defendant is found guilty of possessing a firearm after being prohibited from possession because of a restraining order, he or she can be sentenced to county jail for a maximum of one year. Further, he or she can be subject to a fine of up to $1,000 plus penalty assessments (which taxes the base fine at the rate of 260%).
California Penal Code § 29800 (California’s “Felon With a Firearm” Law) makes it a felony for anyone that has been convicted of a felony in any state (including California) to possess a gun, for life. A person who is in violation of this section is subject to a sentence of 16 months (maximum of three years) in the California state prison, and/or a maximum fine of $10,000.
In addition, California Penal Code § 29805 (California’s 10-Year Firearms Ban) states that a person who has had four or more misdemeanor convictions is prohibited from possessing, owning, or purchasing a firearm for up to 10 years. Misdemeanor convictions include California Penal Code § 29805 (California’s 10-Year Firearms Ban) acts such as battery, stalking, threats, or those acts generally listed in a restraining order. Following the expiration of the 10-year ban, the individual’s right to possess a firearm is restored.
Firearms Restraining Orders
Separate from firearms restrictions (above) contained within restraining orders, a separate type of restraining order, a “Firearm Restraining Order” can be requested by a close family member of an individual the family member believes may cause harm to himself or herself or another person. A police officer can also issue this type of order without delay. Therefore, the reason to request a firearm restraining order is if the police cannot or will not issue the order themselves.
A firearm restraining order requested by family members would prohibit the protected person from:
- Possessing a firearm;
- Possessing ammunition;
- Purchasing a firearm;
- Purchasing ammunition; and
- Requiring a restrained person to turn any firearms over to the police (or sell or store with an authorized gun dealer).
Again, a police officer can initiate a firearm restraining order on behalf of a family member. Qualified family members are:
- A husband, wife, or domestic partner;
- A husband’s or wife’s or domestic partner’s parents, children, siblings, grandparents, and grandchildren;
- Parents, children, siblings, grandparents, grandchildren (and spouses of grandchildren including stepparents or step-grandparents);
- A resident of the same home (whether now or in the last six months) as the potentially restrained person.
Critically important is the fact that a firearm restraining order does not have any impact on the restrained person’s behavior except for the firearms provisions listed above. A firearm restraining order will not and can not include a stay-away provision, a no-negative contact provision, a no-contact provision, or any other type of order.
Restraining Orders in Downtown Los Angeles
Stanley Mosk Courthouse, located at 111 North Hill Street, in Los Angeles: Eagle Rock, Highland Park, Glassel Park, El Sereno, Lincoln Heights, Boyle Heights, East Los Angeles, Commerce, Montebello, Grammercy Park, Manchester Square, Vermont Knolls, Florence, Central-Alameda, South park, Vermont Square, Vermont-Slauson, Harvard Park, Chesterfield Square, Exposition Park, Adams-Normandie, University Park, Historic South Central, Hyde Park, Baldwin Hills/Crenshaw, West Adams, Leimert Park, Jefferson Park, Elysian Valley, Elysian Park, Chinatown, Echo Park, Silver Lake, Los Feliz, East Hollywood, Westlake, Chinatown, Downtown, Pico-Union, Koreatown, Hollywood, Arlington Heights, Harvard Heights, Windsor Square, Larchmont, Hancock Park, Hollywood, Hollywood Hills, Hollywood Hills West, Beverly Grove, Mid-City, and Carthay.
Restraining orders at the Stanley Mosk Courthouse are filed on the second floor of the courthouse between the hours of 8:30am-12:00 pm and 1:30pm-3:30 pm. If litigants require assistance with filing or responding to restraining orders, the courthouse also contains a restraining order help center where court employees answer questions regarding restraining orders and assist with filling out the proper paperwork.
Although the help center employees cannot give legal advice, they can make sure that the proper type of restraining order is being requested, and the correct forms are being used. They can also explain how the forms should be filled out, and what type of documentation and evidence should be presented. Translations services are also available at the help center upon request. The restraining order help center is a great resource for those who are unable to afford an attorney but still require the protections offered by a restraining order.
Once the restraining order paperwork is filed with the clerk, the clerk will request the side requesting the restraining order to wait for the judge to review their paperwork in order to select a hearing date and make a decision on the request for temporary restraining order. The petitioner is sometimes called forward by the judge so that the judge can ask questions prior to ruling on the request for temporary restraining order. Usually, the questions will be about details regarding the allegations of restrainable conduct contained in the paperwork, and/or clarifications regarding the residences and relationship of both sides. The judge in the room will decide whether to grant the request for temporary restraining order on the same day that the paperwork is filed.
Once the judge rules on the temporary restraining order, the clerk will hand the side requesting the order three copies of the paperwork, which will now contain the hearing date, time, and department. One copy is for the petitioner’s records, one copy is to be served on the respondent (the restrained party), and one copy is for the sheriff (if the temporary restraining order was issued). It is up to the Petitioner to provide a copy of the paperwork to the applicable police department for processing. Once submitted, the respondent’s information will be entered into the CLETS system so that the police can arrest and prosecute in the event of a restraining order violation.
The petitioner can also choose to have the sheriff serve the documents on the respondent for a fee. The request for restraining order can also be served by a private registered process server, or by any other third party who is not involved in the case and is over eighteen years of age. Once the documents are served, a proof of service must be filed with the court. If petitioner is not able to locate or serve respondent by the hearing date, the petitioner must come to court and request a continuance of the hearing so that the respondent can be served.
More Restraining Order Courthouses
Various Los Angeles County courthouses hear restraining order matters. The following is a summary of those courthouses and the areas around Los Angeles County that they serve.
Van Nuys Courthouse East, located at 6230 Sylmar Ave in Van Nuys: Westlake Village, Agoura Hills, Calabasas, Hidden Hills, Panorama City, Van Nuys, North Hills, Lake Balboa, Reseda, Woodland Hills, Tarzana, Encino, Sherman Oaks, Sepulveda Basin, Winnetka, Canoga Park, and West Hills.
Santa Monica Courthouse, located at 1725 Main Street in Santa Monica: Del Ray, Marina Del Ray, Culver City, Pacific Palisades, Brentwood, Bel-Air, Beverly Crest, Beverly Hills, Westwood, Santa Monica, Sawtelle, West Los Angeles, Century City, Pico-Robertson, Beverlywood, Cheviot Hills, Rancho Park, Venice, Mar Vista, and Palms.
Conduct that occurs in Norwalk that would justify a restraining order can be filed at the Norwalk Courthouse, located at12720 Norwalk Blvd in Norwalk. The Norwalk Courthouse handles restraining orders requests in the following areas: Pico Rivera, Whittier, La Habra Heights, La Mirada, Cerritos, Lakewood, Norwalk, Bellflower, Downey, Cudahy, Walnut Park, Huntington Park, Bell Gardens, Vernon, West Whittier-Los Nietos, Santa Fe Springs, South Whittier, East La Mirada, Cerritos, Artesia, Bell, Maywood, and South Gate.
Compton Courthouse, located at 200 West Compton Blvd., in Compton: Harbor Gateway, Carson, West Carson, Rancho Dominguez, Compton, Paramount, East Compton, West Compton, and Lynwood.
Alhambra Courthouse, located at150 West Commonwealth in Alhambra: Duarte, Monrovia, Bradbury, Arcadia, Sierra Madre, East Pasadena, East San Gabriel, Monterey Park, Alhambra, South San Gabriel, Rosemead, San Gabriel, San Pasqual, Mayflower village, South El Monte, Whittier Narrows, North El Monte, Temple City, Angeles Crest, Altadena.
The Burbank Courthouse us located at 300 East Olive, in Burbank. Glendale, Burbank, Cases that would cause a restraining order to be filed at the Burbank Courthouse would occur in: La Canada Flintridge, La Crescenta, Montrose, Tujunga, Sunland, Shadow Hills, Lake view Terrace, Hansen Dam, Toluca Lake, Studio City, Valley Village, North Hollywood, Sun Valley.
Chatsworth Courthouse, located at 9425 Penfield Ave, in Chatsworth: Chatsworth, Northridge, Porter Ranch, Mission Hills, Northridge, Panorama City, Arleta, Pacoima, Sylmar, Chatsworth Reservoir, San Fernando, North Hills. Always be sure to contact and experienced Chatsworth restraining order attorney if a restraining order has been filed against you or if you need to file a restraining order against another person.
Pasadena Courthouse, located at 300 East Walnut Ave, in Pasadena. Restraining orders filed in this location would occur in: Duarte, Monrovia, Bradbury, Arcadia, Sierra Madre, East Pasadena, East San Gabriel, Monterey Park, Alhambra, South San Gabriel, Rosemead, San Gabriel, San Pasqual, Mayflower village, South El Monte, Whittier Narrows, North El Monte, Temple City, Angeles Crest, Pasadena, Altadena.
Harassing conduct that occurs in the following areas would result in a restraining order request in Van Nuys: Encino, Panorama City, Reseda, Sepulveda, Sherman Oaks, Studio City, Tarzana, Toluca Lake, Valley Village, and Van Nuys, as well as parts of Agoura Hills, Calabasas, Canoga Park, Los Angeles, North Hills, North Hollywood, Northridge, Winnetka, Woodland Hills.
Conduct that would result in a restraining being filed at the Torrance Courthouse, located at 825 Maple Ave, in Torrance would occur in: Playa Vista, Playa Del Ray, Westchester, Inglewood, Lennox, Hawthorne, Del Aire, El Segundo, Gardena, Torrance, Alondra Park, Lawndale, Redondo Beach, Hermosa Beach, Manhattan Beach, Lomita, Palos Estates, Rancho Palos Verdes, Rolling Hills Estates, Rolling Hills.
Restraining Order Continuances
Parties in a Civil Harassment Restraining Order case are able to request continuances, or delays of the hearing date..
In order to request a continuance, the party that is making the request must fill out and file Form CH-115 and Form CH-116 on the day of the hearing. Petitioners are not automatically entitled to continuances, but judges generally grant a first request for a continuance based on a variety of reasons such as inability to serve the respondent, the recent retention of an attorney by the petitioner, and scheduling conflicts. Petitioners should be aware that a subsequent request for a continuance will likely be seen by the judge as a delaying tactic and will be rejected without a compelling reason for the request.
Respondents, on the other hand, are automatically entitled to one continuance. When requesting a first continuance, the respondent is not required to give any reason whatsoever, and a first request will always be granted by the judge no questions asked. If the respondent wants to request a continuance after one has already been granted, the respondent must have a compelling reason for the continuance such as the recent retention of counsel. The judge is not required to grant any request after the first one.
Resources For Victims of Domestic Violence in Los Angeles
The National Domestic Violence Hotline
- 24-Hour Hotline: 1-800-799-SAFE (7233), in over 170 languages.
- All calls are confidential and anonymous.
- 1736 Family Crisis Center, South Bay Office
- 21707 Hawthorne Blvd, Ste. 300, Torrance, CA 90503.
- Phone: (310) 543-9900.
- Hotline: (310) 379-3620.
- Email: firstname.lastname@example.org.
- Web: www.1736cc.org.
- 1736 Family Crisis Center, Hermosa Beach Office
- 1736 Monterey Blvd., Hermosa, CA 90254.
- Phone: (310) 379-3620.
Domestic Violence Center of Santa Clarita Valley
- P.O. Box 220037, Newhall, CA 91322.
- Phone: (661) 259-8175.
- Hotline: (661) 259-4357.
- Email: email@example.com.
- Web: www.DVSSantaClarita.com.
- Family Violence Project, Tamar House
- 8134 Van Nuys Blvd., Panorama City, CA 91402.
- Phone: (818) 908-5007.
Glendale YWCA Shelter
- 735 East Lexington Drivel, Glendale, CA 91206.
- Phone: (818) 242-4155.
- Hotline: (818) 242-1106.
- Email: firstname.lastname@example.org.
- Web: www.glendaleywca.org/Act.html.
Ocean Park Community Center, Sojourn Service for Battered Women & Children
- 1453 16th Street, Santa Monica, CA 90404.
- Phone: (310) 264-6646.
- Hotline: (310) 264-6644.
- Email: email@example.com.
- Web: www.opcc.net.
Violence Intervention/Program/24-Hour Domestic Violence Response Team
- 1721 Griffin Avenue, Los Angeles, CA 90031.
- Phone: (323) 226-2095.
- Email: firstname.lastname@example.org.
- Web: www.violenceinterventionprogram.org/vip.
Whether to Hire a Restraining Order Attorney
Having the right attorney will guarantee that there will be no ambiguity or confusion about the process. Having a qualified restraining order lawyer also can improve the chances of success, sometimes dramatically. While restraining orders can be appealed, that fact does not mean that the hearing is a “free trial” and that any mistakes can be cured later.
Our attorneys regularly handle restraining orders in Los Angeles, Santa Monica, Van Nuys, Chatsworth, Ventura, and Orange County courts. We offer free consultations to both petitioners and respondents. Call (213) 784-2499 to speak with one of our attorneys.
In an appeal, only legal and evidentiary mistakes by the judge (and not mistakes by a party without an attorney, such as not introducing relevant evidence, not calling relevant witnesses, not asking appropriate questions, etc.) can lead to an appellate court reversing a decision. Therefore, it is always best to have a qualified attorney handling your case from the beginning.
Beyond the assurance that mistakes are less likely to be made, having an experienced and knowledgeable attorney representing you when you request or contest a restraining order can lead to strategic advantages. The rules in each Los Angeles County courthouse regarding restraining orders can vary, and can even vary between courtrooms within the same courthouse. Knowledge of these rules and the ability to use them to a client’s advantage is one way an experienced lawyer can change the outcome of a case. Knowing the preferences and tendencies of judges can sometimes make a difference if used strategically and carefully.
Further, in contrast to some attorneys who infrequently handle restraining order cases, it is always beneficial to have a regular restraining order practitioner representing you. Attorneys who regularly handle restraining orders see multiple requests go before the regular restraining order judges in Los Angeles and Orange County.
These cases provide invaluable assistance when advising clients, as a regular restraining order practitioner knows what kinds of conduct is generally sufficient to have a restraining order request granted, and what kind of conduct is not sufficient. Attorneys who handle restraining orders are also familiar with the litigation process and can have witnesses issued subpoenas and can issue subpoenas for relevant documents or other physical items. This kind of evidence can and often does make the difference between a restraining order being granted or being denied.
Despite all of the above, there is a common misconception that having an attorney will automatically lead to a win, on either side, in a restraining order hearing. While an attorney can make a huge difference, more than in other types of cases (such as a DUI where a number exists, a breach of contract action with a written record of the transaction, etc.), simply having a restraining order attorney file a request or defend a restraining order allegation does not guarantee victory. Ultimately, every case is decided by the facts and the law in the instant matter. A judge will not disregard the law no matter the situation.
Every experienced restraining order lawyer would agree that a pro per restraining order litigant (one who is not represented by a lawyer) has a much better chance than against another party who is represented by the most experienced and skilled restraining order attorney if the facts are on the side in pro per and without counsel. However, in close cases (many if not most restraining order cases) a qualified lawyer can make all the difference. Just remember, having qualified assistance always helps, but may sometimes not be enough if the facts are not on your side.