While the best course of action when defending a restraining order is to contact an attorney, below are the steps that need to be followed if you are defending a restraining order.
1. Prepare the Response
If someone is trying to obtain a Civil Harassment Restraining Order against you, they need to have you served with the following forms:
Form CH-100 → this form has all the details of the restraining order and what is being alleged against you. Read this form carefully because it tells you what you are and are not allowed to do.
Form CH-109 → this form tells you the date, time, and place of the court hearing.
Form CH-130 → this form contains the temporary orders that have already been granted by the court. You need to abide by these orders until the hearing date found on the first page of Form CH-109. If you violate an order contained on the CH-130 you could face criminal penalties. It will also be much more difficult to defend your case if the judge finds out you have already violated a court order.
A blank copy of Form CH-120.
You need to read the forms that the other party filed with the court and served on you to find out exactly what they are alleging. Then fill out the CH-120 with your response. You need to respond with provable facts that dispute what is being alleged against you. If there is any evidence that supports your defense, such as emails, text messages, or police reports, attach the evidence to your Response. If there are any witnesses whose testimony if favorable to your defense, have them make a statement in writing and attach any such statements to your response.
If you own any firearms, you must turn them into the police or a licensed gun dealer pending the resolution of your case. Fill out Form CH-800 and attach a receipt showing that you have turned in your firearms. Include this form with your Response.
2. Serve the Response On The Other Side
After the Response is complete, a copy needs to be sent to the Petitioner at the address listed on the first page of Form CH-100. If an attorney is listed on Form CH-100, the Response must be mailed to the attorney.
You cannot mail the Response yourself. You need someone who is at least 18 years of age and not a party to the case to physically put the documents in the mail. Before mailing the Response, this person needs to fill out and sign the Proof of Service (Form CH-250). Attach a copy of the Proof of Service to the Response and have everything mailed to the Petitioner or their attorney.
3. File the Response with the Court
After mailing your Response to the other side, you need to have the Response filed with the court. The original Response and Proof of Service, and one copy of each need to be brought to the clerk’s office of the courthouse where the hearing will take place. You may also be required to pay a filing fee of $435.00.
You can avoid paying the filing fee if the other side alleged that there has been violence or threats of violence, and based on those allegations was able to get their fee waived by the court. If this is the case, you will not be forced to pay a fee.
4. Consider a Fee Waiver
You can also avoid paying the fee if you cannot afford it. This is called a fee waiver. It can be used in cases when you are on government assistance, earn a low income, are unemployed, or cannot pay your basic household expenses. In order to obtain a fee waiver from the court you need to fill out and file a Request to Waive Court Fees – Form FW-001 Also fill out Section one, two and three of Order on Court Fee Waiver, Form W-003. Turn both forms into the clerk when you file your response.
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.
Even if your fees are waived at first, you may have to pay them back later. If your financial situation changes for the better 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 forced to repay the waived court fees.
5. Attend the Hearing
You must appear in court at the time and place listed on Form CH-109. If you need more time to prepare your case, or to hire an attorney, you are entitled to one delay, or continuance, of the case. In order to request the continuance, you still need to appear at the hearing. The Court will give you a new hearing date and reissue the Temporary Restraining Order until the new hearing.\
Bring copies of all the paperwork you received from the other side and everything you filed with the court to the hearing. Dress professionally, be polite, speak slowly, and do not interrupt the judge or the other side. Despite the fact that it is difficult to hear the other side making false allegations against you, remain calm and professional. Otherwise, you run the risk of appearing aggressive to the judge and hurting your defense. Also, be extremely careful not to admit to any crimes under oath, because such admissions can lead to later criminal prosecution. Remember, under the 5th Amendment, you have the right to not say anything that will incriminate you.
At the hearing, the judge will decide whether or not to issue a restraining order against you. The other side needs to prove their case by clear and convincing evidence. If there are any witnesses to any of the events that are the subject of the Petitioner’s Request or your Response, you need to speak with the witnesses, and if their point of view is favorable to your defense, you should ask them to come to the hearing and testify on your behalf. If you have included witness statements with your Response, have those witnesses come to court with you, of possible. You will need to convince the judge, by using witness testimony and evidence that a Restraining Order should not be issued against you. The judge may also give you an opportunity to ask the other side questions, so prepare and bring a list of questions with you.
Consequences of a Restraining Order
A restraining order can have serious restrictions, such as:
- Contact – you will not be able to contact or be near the other party – this can lead to restraining order abuse even if you are complying with the order. It is important to note that when a restraining order is issued against you, no restraining order is issued against the other party. This means that the other side can put you in a position where you have violated the restraining order through no fault of your own.
- Employment – A restraining order shows up on a criminal background check. Many employers will not hire someone with a restraining order on their record. Also, your current employer may conduct periodic background checks of their employees, and you may be terminated if your employer learns about the restraining order against you.
- Professional Licensing – You may lose your state professional license, or be unable to obtain a professional license with a restraining order on your record. Some licensing bodies require that restraining orders are disclosed to them, and will take disciplinary action against members who have a restraining order against them, or members who fail to disclose a restraining order.
- Reputation – a restraining order will be public record, so anyone can search the court files for your case and see that you have been accused of wrongdoing and that a restraining order has been entered against you.
- Residence – You may be forced to move out of your residence if the restraining order includes a move-out order. This usually applies when the parties to a restraining order case are roommates.
- Custody – If you are involved in a custody case, or share custody of a child, a restraining order may adversely affect your custody and/or visitation.
- Attorney’s fees – If you lose your case, you may be required to pay the other side’s attorney’s fees, if they were represented by an attorney at the hearing.
- Firearm ownership – California law prohibits anyone with a restraining order against them from owning or possessing firearms.
- Criminal proceedings – If the allegations made against you in the restraining order case can be considered criminal conduct, losing your restraining order case can cause the District Attorney to file criminal charges against you for that same conduct, especially if you admitted to any of that conduct under oath during the restraining order hearing.
Consequences of violating a Civil Harassment Restraining Order
A violation of a Restraining Order in California is a misdemeanor. If you are convicted of violating a restraining order, you face a maximum $1,000 fine and up to one year in a county jail per violation.
Defending Other Types of Restraining Orders
The information above only assists with the defense of civil harassment restraining orders. For information to help defend other types of restraining order requests, click below.