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. Information on how to defend other types of restraining orders (such as Domestic Violence Restraining Orders, Elder Abuse Restraining Orders, and Workplace Violence Restraining Orders) are also discussed on this page, below.
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 forms below. They must also establish the necessary facts to have a Civil Harassment restraining order granted.
Harassment is unlawful violence, the credible threat of violence, or a knowing and willful course of conduct that seriously alarms, annoys, harasses or threatens another person. The conduct in question cannot be serving a legitimate purpose (a person cannot file a restraining order against a bill collector who calls often, but may be able to take other administrative action) and must reasonably and actually cause substantial emotional distress. A credible threat of violence is defined as 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.
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 must 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.
Incorrect statements of fact or misleading evidence in the Petitioner’s paperwork often exist and the courts do not know which side is being truthful. For that reason, evidence discussed above is very important and should be preserved. Sometimes, simple paperwork establishing that the other side has made misrepresentations to the court is enough to cast doubt on the Petitioner’s entire claim. However, the opposite can certainly be true: an abundance of evidence that does not do a good job of disproving the other side’s claims can obscure a court’s view.
Judges have limited amounts of time for each case and if you use the judge’s valuable time going over evidence that does not relate to the specific requirements of a restraining order, he or she can and will sometimes miss the real evidence that can win your case. Of course, this fine line is best straddled by an experienced restraining order attorney who has dealt with these types of issues many times.
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. Failing to turn in firearms can result in criminal charges.
In addition to the gun restrictions imposed on restraining order respondents, a new law in California, AB 1014, signed in 2014 allows family members or law enforcement to request a court issue a gun violence restraining order, This is separate from all other kinds of restraining orders and can be issued when there is evidence that an individual poses a danger to himself, herself or others. While it was signed in 2014, this new law became effective in January of 2016.
The forms provided by the judicial council for restraining order cases should always be used when filing a response. While it is technically acceptable to file pleadings that substantially advocate whatever the most advantageous position is, judges and clerks are used to the forms that are provided by the state. Using these forms will show that you have read and understood the process. Further, judges will have more time to decide your case on the merits instead of reading through documents with which they are unfamiliar. Restraining order courts in Los Angeles and throughout southern California have large calendars and only a limited amount of time to hear cases. The shorter and more concise one side’s points are made while still advocating the positions properly, the more likely that those arguments will receive their full attention.
Using procedures that deviate from the norm, while sometimes permitted, can weaken your case: a judge may spend time he or she otherwise would have spent reviewing the validity of your defense instead reviewing the sufficiency of the documentation you submitted to defend the dispute. The forms for responding to a restraining order that were provided by the state judicial council provide plenty of room for adequate responses to any allegation contained within a restraining order request and if not enough room is available, supplemental pages are permitted to be filed.
Do not submit evidence that is irrelevant or otherwise not related to the dispute in question. Again, judges have limited time and are reluctant to listen to facts that are not pertinent to the decision they must make in the hearing. In addition, presenting evidence that is unrelated to the hearing taking place can hurt a respondent’s credibility and weaken the effect other important pieces of evidence.
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.
While personal service or service beyond mailing documents via US First Class Mail in restraining order cases is not required except when serving a respondent with the notice of the permanent restraining order hearing (where personal service is required), documents can be served personally, by mail or by certified mail. Personal service or service by certified mail can be beneficial, especially when a petitioner is representing himself or herself, as he or she will have a much harder time alleging that paperwork sent by the respondent was not received. Below are some additional service options for responding to a restraining order request:
Service by the local sheriff: ask the clerk of the court how to have the sheriff serve the documents and what fee is involved. The clerk will explain the process and you can contact the sheriff to begin service. Once service is complete, the sheriff will send a proof of service (here, an affidavit), to prove that the petitioner was served with the documents. Check with the clerk to confirm service by the sheriff.
You can also hire a private process server to serve the restraining order petitioner with your responsive documents. You should give the process server the documents and all information about where to serve the petitioner. While this option is costly, it is usually unnecessary, with other options being less expensive and easier.
Any adult over the age of 18 (not you) can serve the documents by certified mail. He or she should take the relevant documents to the post office, and should send the documents to the petitioner by certified mail, restricted delivery, with a return receipt requested. Have the person mailing the documents complete the proof of service, and you will then file the green card you get back from the post office after the certified mail was sent, to prove the petitioner received the papers.
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. The check for that filing fee should be made out to “Los Angeles Superior Court” (fee waivers are available in some cases). 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.
It is always a good idea, when filing court documents (here, the restraining order request response in a Civil Harassment matter) in any case, to bring an additional copy of the document you are filing, in order to obtain a “conformed copy” of the document. A conformed copy is an exact copy of a court-filed document (any officially filed court document).
To obtain a conformed copy, the court clerk at the courthouse where your restraining order case is being heard will take the second copy of the filed document and stamp the front page of that copy with the time, filing date, and the name of the court (here, the Los Angeles Superior Court) that the document is being received at. Some clerks, when receiving some documents, have a stamp that allows the clerk to sign the conformed copy to further authenticate the document.
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.
Everyone should avoid any incriminating statements during the restraining order hearing is obviously made easier with the assistance of qualified counsel and is made even more difficult when you are not represented while the petitioner is. This can make avoiding damaging testimony even harder, as you are attempting to avoid damaging your case while dealing with questions designed to place you in legal danger.
Remember, under the fifth amendment to the U.S. Constitution, you have the right to not say anything that will incriminate you. Your right to remain silent can impact your ability to testify about other issues or testify altogether in a restraining order case. A judge may allow you to testify to certain facts and assert your fifth amendment privilege with respect to other testimony. If he or she limits your testimony and basically refuses to allow you to testify to some things and assert your right to remain silent as to others, you will need to decide wither or not to testify at all. Again, losing a restraining order is not a criminal conviction, and the consequences are only that you will become eligible to be charged with a crime if you take certain steps. Therefore, it often makes practical sense to refuse to testify altogether and simply let a restraining order issue.
This choice can allow you to avoid being forced to make statements that could incriminate you for past conduct. Consequently, this is one of the reasons it is always beneficial to have an experienced restraining order attorney working for you. He or she can always properly advise you about your potential exposure in any criminal matter and can assist you in weighing whether or not to testify in a restraining order proceeding. Because these advantages of an attorney are in addition to him or her fighting the case itself and using his or her experience to defeat the restraining order application, it makes sense to have an experienced advocate fighting for 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.
In a restraining order hearing, respondents and petitioners are not entitled to a jury trial. Questions of fact (such as who is telling the truth, how the weight of the evidence should be determined, etc.) and questions of law (whether a case is properly filed procedurally, whether proper notice to a restraining order respondent has been given, etc.) are all determined by a judge or court commissioner (or, with the consent of the parties, a “judge pro tem,” also known as a temporary judge).
In many other types of cases, if one party requests a jury trial, all issues of fact are then decided by the jury and not the judge or court commissioner. In all cases, restraining orders and others, questions of law are always decided by a bench officer and not by a jury.
“Clear and convincing evidence,” the standard or proof for all evidence in restraining order hearings, is a different standard than is used in most court proceedings. In most civil litigation, non-restraining order matters, the evidence that a judge or a jury is determined by a “preponderance of the evidence standard.”
This standard of proof, used in civil, non-restraining order hearings, means that the decider of the facts in a case (whether a judge or commissioner or jury) may base their decision if they feel only slightly more confident that one side is right (51% is sufficient). In contrast, in criminal cases, juries (or in some rare cases, a judge), in order to convict a defendant, must find that he or she is guilty “beyond a reasonable doubt.”
While, like the “clear and convincing standard,” there is no numerical threshold to achieve a lack or reasonable doubt, it is considered the highest standard that exists in law. “Clear and convincing” evidence, used in all restraining order hearings, is the middle standard of proof. Less proof than is required to convict a criminal defendant beyond a reasonable doubt is required, whereas more proof than a simple lawsuit over money is required to issue a restraining order.
Many restraining order courts throughout California request or require that parties attempt to mediate their dispute prior to beginning some types of restraining order hearings. Often, mediation, in cases like neighbor disputes or disputes after verbal arguments in the workplace can be of assistance in resolving the matters that led to the restraining order request in the first place. In other cases, where real violence has occurred or is likely to occur, mediation may not be of much value. Neither party is ever required to resolve their dispute through mediation and each side is entitled to proceed to a restraining order hearing, calling witnesses and introducing documentary evidence, if they choose.
The individual filing the restraining order request must also file the correct type of request. If the correct type of request is not filed, the matter can and should be dismissed. If a request is made on behalf of an employee of a business against an employer or another employee, and the request is made for a Workplace Violence Restraining Order, this request should be dismissed, as those types of orders are limited to employers filing requests on behalf of employees. Further, if one sibling files a restraining order request as a civil harassment request, the request may be denied as it should have been filed as a Domestic Violence Restraining Order request because of the relationship between the parties. Elder Abuse Restraining Order requests are also sometimes misunderstood. Initially, these requests do not have to be filed by the individual seeking protection, they may be filed by a third party on behalf of a qualified recipient of an order. Finally, Elder Abuse Restraining Orders are not just for those 65 years or older – they can be filed by or on behalf of any individual whose physical or mental capabilities / disabilities prevent him or her from engaging in normal activities. Anyone seeking protection or defending a restraining order request should always seek the advice of a qualified attorney, familiar with the proper procedures to ensure a successful outcome.
Evidence in Restraining Order Cases
Evidence in a restraining order hearing functions the same way that evidence in a civil lawsuit or criminal case does. While the weight of the evidence that is required to establish proof is different, the general rules regarding admissibility exist. Hearsay statements are still inadmissible in restraining order hearings, absent an exception.
Foundational issues regarding eyewitness testimony is also the same. Further, requirements that documents be authenticated in a proper manner are present in restraining order hearings. While it may seem possible, and my sometimes occur, that a judge relaxes these rules to accommodate parties without an attorney, he or she is under no obligation to do so, and doing so, if obvious, can be improper if the other side is prejudiced. Again, this is why having competent representation can never hurt a restraining order case and can sometimes help significantly.
Parties may be untruthful or withhold facts to purposely deceive the court when testifying in a restraining order hearing. Petitioners will sometimes also embellish the facts surrounding the events leading to the restraining order request. While complying with local state laws and federal law, if you have video or audio or the alleged incident or incidents the petitioner is referring to, that evidence can and sometimes does lead to the restraining order being denied (never record someone without his or her permission if an “expectation of privacy” exists, such as in a private residence or office).
In addition, sometimes questioning the restraining order petitioner or one of his or her witnesses, especially if he or she is being untruthful, can be very productive in uncovering ulterior motives or “alternative facts” that he or she was otherwise unwilling to offer. Often, getting to the details of a situation, explaining what transpired rather than glossing over key events, can change the judge’s perspective and cause the restraining order to be denied. As with all restraining orders, however, it is always best to seek and use the assistance of an experienced restraining order attorney.
Hearsay evidence is not admissible in any court, including a restraining order hearing, absent an exception. This means that unless there is a viable exception, no testimony in a restraining order hearing can include any out of court statement made by any person that is used to prove its truth. While the exception of “present sense impression” where a person’s statements made during or in the immediate aftermath of an event and relaying its characteristics is often available, the best course of action to prove an allegation false is to bring the person who witnessed the event to testify and not bring someone who overheard an observation. If that person / witness refuses come to court after being issued a subpoena and will not truthfully relay what happened, the court can issue a warrant for his or her arrest.
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. Check with your local licensing agency or an attorney to see if a restraining order will affect your professional license.
- 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. While this is not a criminal charge or criminal conviction, a restraining order can have a negative impact on many things, including social relationships and your ability to be hired at a given place of employment, as discussed above. Some people believe, regardless of the validity of the restraining order and whether it was decided correctly, that the issuance of a restraining order means that the respondent is somehow a “problem person.” Whether this is true or not in an individual case, it is always best to avoid the issuance of a restraining order to avoid those misconceptions.
- 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. However, courts are reluctant to issue restraining orders that prevent people from going to and from their home, except in extreme cases or cases where a move-out order is appropriate.
- 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. The rulings of a judge in a family law case can have an impact on restraining order proceedings, as judges are often reluctant to overrule or contradict another judge.
- 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. The other side must file a motion to recover fees and the judge, at his or her discretion, may approve or deny the restraining order hearing attorney’s fees request.
- Firearm ownership – California law prohibits anyone with a restraining order against them from owning or possessing firearms. This rule is firm and cannot be contradicted by a judge if a restraining order is granted. This condition should not be confused with the separate California Firearm Restraining Order.
- Criminal proceedings – Two separate types of criminal issues arise as a result of a restraining order. First, 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. This is because your admissions have been overheard by a judge, court clerk, courtroom deputy, and the other side. Even if you do not make admissions, the airing of conduct by the petitioner can sometimes cause someone to alert law enforcement. While nothing can be done to expressly prevent this, sometimes a good cross-examination by an experienced restraining order attorney can help show inconsistencies contained within allegations or can show that the allegations were physically impossible in the first place.
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. Penal Code § 273.6 is the specific code section that prohibits violations of restraining orders in California.
To establish that a defendant in a criminal matter is guilty of violating a restraining order (Penal Code § 273.6), a prosecutor must prove beyond a reasonable doubt that:
- The defendant violated a protective order (either a Civil Harassment Restraining Order, a Workplace Violence Restraining Order, an Elder Abuse Restraining Order or a Domestic Violence Restraining Order) that was lawfully procedurally issued and noticed by a California court;
- The defendant acted knowingly and with the intent to violate that protective order discussed above; and
- The defendant’s act or acts resulted in harm to the protected person or another person.***
It should be noted that the third element, above, only applies to a violation of Penal Code § 273.6(b), commonly referred to as “Disobeying a Court Order Causing Injury.” However, Penal Code § 273.6(a) does not require any person be injured as a result of the defendant’s / respondent’s conduct and can still be punished for up to one year of county jail and can still be placed on probation for up to five years (the length of probation or whether probation is granted at all is a decision made by a judge if and when a defendant / respondent pleads guilty or is otherwise convicted of violating Penal Code § 273.6).
Finally, it should be noted that a violation of Penal Code § 273.6(b) carries with a minimum 30-day custody sentence in county jail if one is convicted. Finally, a violation of Penal Code § 273.6(d), causing injury with a prior conviction for Penal Code § 273.6 can be charged as a misdemeanor or a felony, at the prosecutor’s discretion. A misdemeanor violation of Penal Code § 273.6(d) carries a minimum 180-day county jail sentence, whereas a felony violation carries a maximum possible sentence of three years in state prison.
If a restraining order is violated, the proper procedure is to call the police. While the police acting is not the only way to stop a restraining order violation, it is the most common and most effective way. Technically, it is possible to return to the restraining order court where the order was issued and request that the judge hold the respondent (the individual in a restraining order against whom protection is sought) in contempt of court for violating the restraining order. However, for procedural and practical reasons, that route is rarely attempted and rarely successful).
The most common and most effective way for a restraining order petitioner (the protected person) to enforce a restraining order is to contact law enforcement calmly and have a copy of the restraining order in hand when the police arrive. Police are skeptical of individuals who contact them while under the influence of drugs or alcohol or are otherwise erratic and unreasonable. The best policy when dealing with law enforcement is to be sober, reasonable, calm, and patient. Petitioner’s should always have a copy of their restraining order with them to establish that a respondent is not allowed to be where he or she is. While the petitioner having possession of the actual order is not required for a restraining order respondent to be arrested, from a practical perspective, it can be of assistance to the police.
Defending Other Types of Restraining Orders
The information above only assists with the defense of civil harassment restraining orders. Below is valuable information to defend other types of restraining order requests:
If someone is trying to obtain a Domestic Violence Restraining Order against you, they need to serve you with the following forms:
- Form DV-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 DV-109 – this form tells you the date, time, and place of the court hearing.
- A blank copy of Form DV-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 Form DV-120 with your response. You need to respond with provable facts that dispute what is being alleged against you. Then file the form with the court and mail it to the other party.
The process for defending a Domestic Violence Restraining Order is substantially similar to defending a Civil Harassment Restraining Order, discussed above. While the forms are different and the requirements for filing an order because of domestic violence are slightly different as well (the sides must be: married or registered domestic partners, divorced, separated, dating or used to date, have a child together, live together or used to live together, or are closely related [parent, child, brother, sister, grandmother, grandfather, in-law]).
Additional considerations exist specifically related to defending domestic violence allegations. Most allegations that involve domestic violence that could or do lead to a restraining order are also criminal violations. California Penal Code Section 273,5 outlines the rules related to many domestic violence charges. A respondent (the person upon who allegations have been made) in a Domestic Violence Restraining Order case must be careful that he or she does not make statements defending the restraining order that can lead to criminal charges being filed or lead to criminal charges being strengthened.
Every respondent in a domestic violence restraining order retains his or her 5th amendment right against self incrimination and can choose not to testify. While this will sometimes lead to the issuance of a restraining order where one would not have otherwise been issued, it protects the Domestic Violence Restraining Order respondent against the worst situation: where the petitioner is represented by counsel and that attorney questions the petitioner, getting him or her to make incriminating statements. This is why it is always the best course to hire an attorney if anyone is seeking a Domestic Violence Restraining Order against you or a family member.
A common procedural defense in civil harassment restraining order matters is that the petitioner incorrectly filed the matter as a civil harassment request when the matter, because of a qualifying relationship, should have been filed as a domestic violence request. While a court may choose to ignore this requirement, the proper statutory tactic is to file the proper type of order. This type of misfiling is why it is always critical to retain the service of an experienced restraining order attorney, familiar with the nuances of the types of orders, leading to a lack of mistakes in the initial filing stage.
Domestic violence restraining orders can be up to five years in length. Further, upon application, a judge can extend a workplace violence restraining order without additional inappropriate conduct by the respondent. Whether or not to grant an extension, absent additional wrongdoing by the petitioner, is entirely within a judge’s discretion.
If a petitioner is attempting to obtain an Elder Or Dependent Adult Abuse Restraining Order against you, you must be personally served with the following forms:
- Form EA-100 – this form has all the details of the restraining order and what is being alleged.
- Form EA-109 – this form tells you the date, time, and place of the court hearing.
- A blank copy of Form EA-120. This form contains your response.
Defending allegations in an Elder Abuse Restraining Order request are substantially similar to defending a Civil Harassment Restraining Order. Form EA-120 is CH-120. It provides an opportunity to state your defense – facts that would counter the allegations made in Form EA-100. Additional documentary evidence, such as audio recordings, video recordings, written letters or other documents can be included by attaching them to Form EA-120.
Often, a petitioner’s allegations can be proven false with relatively small amounts of physical evidence or in-person testimony. If the allegations of elder abuse contain facts that are contrary to logic or contrary to the weight of the evidence (i.e., travel records or airline tickets showing you were not in the area at the time of the alleged abuse), allegation can be fought successfully.
Further, an Elder Abuse Restraining Order is not always the appropriate type of restraining order. Other times, however, an Elder Abuse order can be a good option for people other than the elderly. Specifically, individuals 65 years or older are only the first category of people that can request an Elder Abuse Restraining Order.
Any adult that has certain physical or mental disabilities that keep him or her from being able to engage in normal activities or prevent him or from protecting himself or herself can apply for this type of an order. Caregivers of the disabled or elderly who are alleged to have neglected or abandoned those in their care can have an Elder Abuse Restraining Order filed against them. This type of restraining order is different in some ways than all other types of orders because a lack of action can lead to a restraining order being filed (a lack of action would include not providing food, medicine, or the handling of finances when duty-bound). Further, an Elder Abuse Restraining Order is different than other types of restraining orders because it can be requested by a party alleging financial abuse only. For those who wish to seek redress or to stop financial abuse but do not qualify for this type of restraining order, the proper course of action is to request damages and / or a temporary order (an injunction) in a civil lawsuit (or via the criminal process, if applicable).
An elder abuse restraining order can be issued for up to five years, similar to a domestic violence restraining order. An elder abuse restraining order can also be extended, with a court’s approval, for up to five additional years. There does not need to be an allegation of additional wrongdoing on the part of the respondent for the restraining order to be extended.
If a petitioner is attempting to file a Workplace Violence Restraining Order against you, they need to serve you with the following forms:
- Form WV-100 – this form has all the details of the restraining order and what is being alleged against you.
- Form WV-109 – this form tells you the date, time, and place of the court hearing.
- A blank copy of Form WV-120. This form contains your response.
Because a Workplace Violence Restraining Order can only be requested by an employer on behalf of an employee and not by anyone else under any circumstances, Workplace Violence Restraining Order requests are the most-often misfiled restraining orders and, consequently, sometimes the easiest to defeat.
For example, if one co-worked files this type of restraining order against another co-worker, the judge, if the proper objections are made, will refuse to listen to the evidence and will not consider the validity of the case. He or she will not hear any evidence because of the legal defect in the way in which the restraining order was requested. If this happens, the judge will instruct the petitioner (the side requesting the restraining order) to re-file the paperwork and request a Civil Harassment Restraining Order instead.
This type of scenario can be very difficult for the petitioner because he or she must begin the process all over again, and request another order. However, by the time the new order is requested, circumstances may have changed. The respondent (the individual against whom protection is sought) may have left his or her job (the cause of the problem in the first place), be re-assigned to another position or location, left the area permanently or may have simply stopped the behavior that led to the request in the fist place. While it can sometimes work in the respondent’s favor to proceed with the initial case, it usually is in the respondent’s best interest to have the entire case dismissed, forcing the petitioner to begin again.
Workplace violence restraining orders can be granted for up to three years. These types of orders can also be extended for up to three additional years with a court’s approval. There is no requirement that additional inappropriate conduct be alleged to extend the restraining order, but again, that extension is entirely within a judge’s discretion.
Will the Restraining Order be Granted?
In cases involving harassment, there are certain “elements” or requirements that must be proven before a judge can issue a restraining order. An allegation of harassment against the respondent is not enough, there needs to be a “credible threat of violence” or a willful course of conduct that “alarms, annoys, or harasses” the petitioner.
The conduct by the respondent, if the restraining order is going to be granted, must also serve “no legitimate purpose.” The petitioner must also be reasonably and substantially emotionally distressed. The conduct must be the kind that would cause a reasonable person to be in fear for his or her safety or the safety of his or her family.
While there is a requirement that a course of conduct be present, that course of conduct can be very short as long as there is evidence of a “continuity of purpose.” That continuity of purpose must involve some kind of legitimate harassment such as following someone (stalking), inappropriate telephone calls (when looking at volume or substance), harassing emails or text messages, faxes, or any other type of similar communication.
Typically, even if the conduct is repeated and consistent, there must be some type of conduct that causes the petitioner to justifiably be in fear. Consistent sales calls or other constitutionally protected free speech that annoys the recipient (such as political advertisements, no matter how annoying they are) is not a reason for a restraining order to be granted.
Courts are also reluctant to grant restraining orders if they feel that one side is simply trying to gain an advantage in a civil dispute over money or in a family law matter that is being handled separately. These are common types of methods to gain advantages in other proceedings by abusing the judicial process in a way it was not intended to be used.
All considerations above aside, when cases are close, decisions can be made in either direction. Judges are human beings and have opinions and have had significant life experiences, making it impossible to completely remove themselves from the practicalities of a given case. While judges, prior to taking the bench, are required to attend classes on ethics, judicial demeanor and decision making, no amount of education or learning can make someone inhuman and devoid of all emotion. It can be very valuable to have an experienced restraining order attorney who, without requesting favors or engaging in unethical behavior, who knows the preferences and tendencies of certain judges.
Every judge handles matters slightly differently, and knowing the rules in a particular courtroom and knowing the evidentiary tendencies of judicial officers can make a large difference in cases where the decision is “close.” Obviously, in cases where the alleged harassment, elder abuse, workplace violence, or domestic violence is egregious, it hardly matters which judge or judicial officer hears the facts in the restraining order allegation; the restraining order request is likely to be granted. On the other hand, in cases where the restraining order was filed as an attempt to harass a respondent and abuse the judicial process, no judge or judicial officer would grant the request.
Restraining Orders in Business Disputes
Sometimes, one side in a business disputes will attempt to subvert the process and request a civil harassment restraining order. While a restraining order can sometimes be appropriate if actual harassment is taking place, simply accusing an adversary of harassment and asking a court to intervene in a business dispute is the appropriate route. Despite the rules, some litigants will still use the restraining order process and not file a civil lawsuit requesting injunctive relief as they should.
Judges are very reluctant to intervene in business disputes or disagreements regarding contracts and often deny these types of requests. Initially, any restraining order that request that seeks to prevent the respondent from engaging in certain activities other than physically staying away form petitioner and other protected individuals will be viewed skeptically. This is not to say that simply because a petitioner or a respondent or both are involved in business dealings that a stay away order is not appropriate – it may be. However, that type of situation is something a restraining order judge will consider.
A better course of action, if a petitioner who is involved in business dealings with a prospective respondent and wants that respondent to stay away from him or her for a valid reason, is to file a restraining order only requesting typical restraining order conditions and then to file a separate civil action. That separate civil action would not request any orders typically contained within a restraining order and would instead request an injunction, if necessary, to deal with any financial or business issues.
When Respondent files a Restraining Order Against a Petitioner
It sometimes happens, often with neighbor disputes and in domestic violence restraining order cases, that a respondent in a restraining order matter files a restraining order, as a petitioner, against the original petitioner, now also a respondent.
These competing restraining orders function similarly to a counter-claim except that the restraining order process in California does not provide for a counter-claim in the same case. When an existing restraining order respondent files a restraining order against the petitioner in his or her existing case, that charge must be the subject of a new restraining order case.
While the new case can often be heard in the same courthouse and even in the same courtroom as the original restraining order case, the new matter can and often is filed at a different location or at the same courthouse, with the matter being assigned to a different judge in a different courtroom. While restraining order paperwork, when requesting an order, does mandate the petitioner identify any other restraining order cases concurrently filed, “joining” the cases up requires coordination by court clerks.
If filing a restraining order against someone who has filed one against you, you need to mark the section in your petition that asks to list “Related Cases” and include the case number where you are the respondent. You can then appear at the time and place where the original case is set to be heard and inform the clerk that you have also filed a restraining order against the petitioner.
The clerk may have you proceed with your defense and not “consolidate” the cases, but they will very often combine both cases to be heard in the same courtroom at the same date and time, even if the cases were filed in different courthouses (this will result in a continuance of the first matter to the same date and time as the second matter). Usually, the clerk in the case where you are a respondent will contact the clerk in the other matter and discuss logistics, but there is no requirement that be done.
Should You Hire a Lawyer to Defend a Restraining Order?
The decision regarding whether to hire an attorney to defend a restraining order can always be answered the same way: yes. Whether or not you have engaged in the conduct that led to the restraining order being requested, it is always advisable to have an experienced restraining order attorney advocating for you.
Whether the allegation is elder abuse, domestic violence, workplace violence or generic civil harassment, there are two main advantages to having a restraining order attorney defending your case. First, a qualified attorney can often effectively attack the version of events the petitioner is alleging occurred. This can be done with cross examination, introduction of exhibits (such as photographs, audio or video), or affirmative evidence (witnesses for the petitioner).
If the petitioner can be shown to be untrustworthy or untruthful about one piece of evidence, it is possible that all of his or her testimony can be called into question, sometimes leading to the dismissal of an entire restraining order matter. While this is not always the result of catching a petitioner in a lie, securing inaccuracies in the evidence of the opposing party (of any kind in any type of proceeding) is always advantageous.
The other major advantage to having an attorney defending restraining order allegations against you is that, even if the facts are agreed to or there is little dispute about what occurred, a skilled restraining order attorney in Los Angeles can sometimes persuade a judge that the facts do not meet the standards that a restraining order application must meet, either because the conduct is not sufficient or a crucial and required element is missing. For example, even if it is agreed and established that harassment did occur, if the court can be convinced that the conduct was mild and no person is in danger, the restraining order request can be overcome.
In short, hiring an attorney for a restraining order can rarely hurt, as long as the attorney is experienced in defending restraining order matters. However, there are instances where the assistance of an attorney may make little or no difference in the case – i.e., if the restraining order is going to be granted regardless of what defense or arguments are presented. In many cases, even if the result is or would be the same, having an attorney can provide assurance that nothing unfair or unreasonable will occur – basically ensuring that you, as a respondent, are not treated disproportionately unfair when compared to other respondents. Finally, it never hurts to receive a free consultation from an experienced lawyer, regardless if you end up hiring him or her. While very few if any attorneys only handle restraining order matters, some handle more than others. Typically, criminal defense attorneys or family law attorneys handle restraining order requests and handle restraining order defense. However, some of these practitioners handle so few restraining order matters that they are unfamiliar with the processes. In addition to finding a qualified attorney, to maximize effectiveness, that attorney should be one that regularly handles restraining order requests of all kinds, no matter what his or her major area of practice is.