Thursday, May 22, 2014

How Do I Get a Domestic Violence Restraining Order?

What Is Domestic Violence?
Domestic violence is abuse or threats of abuse when the person being abused and the abuser are or have been in an intimate relationship (married or domestic partners, are dating or used to date, live or lived together, or have a child together). It is also when the abused person and the abusive person are closely related by blood or by marriage.
The domestic violence laws say “abuse” is:
            Physically hurting or trying to hurt someone, intentionally or recklessly;
            Sexual assault;
            Making someone reasonably afraid that they or someone else are about to be seriously hurt (like threats or promises to harm someone); OR
            Behavior like harassing, stalking, threatening, or hitting someone; disturbing someone’s peace; or destroying someone’s personal property.
Physical abuse is not just hitting. Abuse can be kicking, shoving, pushing, pulling hair, throwing things, scaring or following you, or keeping you from freely coming and going. It can even include physical abuse of the family pets.
Also, keep in mind that the abuse in domestic violence does not have to be physical. Abuse can be verbal (spoken), emotional, or psychological. You do not have to be physically hit to be abused.  Often, abuse takes many forms, and abusers use a combination of tactics to control and have power over the person being abused.
If you are being abused in any of these ways or you feel afraid or controlled by your partner or someone you are close with, Call 911.  Once you are safe, immediately call the Law Office of Robert R. Beauchamp, Orange County Divorce Lawyers experienced in domestic violence.
Domestic Violence Restraining Orders
A domestic violence restraining order is a court order that helps protect people from abuse or threats of abuse from someone they have a close relationship with.
You can ask for a domestic violence restraining order if:
1.             A person has abused (or threatened to abuse) you; AND
2.             You have a close relationship with that person, meaning that you are:
            Married or registered domestic partners,
            Divorced or separated,
            Dating or used to date,
            Living together or used to live together(more than roommates),
            Parents together of a child, OR
            Closely related (parent, child, brother, sister, grandmother, grandfather, in-law).
If you are a parent and your child is being abused, you can also file a restraining order on behalf of your child to protect your child (and you and other family members). If your child is 12 or older, he or she can file the restraining order on his or her own.
If you do not qualify for a domestic violence restraining order, there are other kinds of orders you can ask for:
            Civil harassment restraining order (can be used for neighbors, roommates, coworkers, or more distant family members like cousins, uncle or aunt, etc.).
            Elder or dependent adult abuse restraining order (if the person being abused is 65 or older; or between 18 and 64 and a dependent adult).
            Workplace violence restraining order (filed by an employer to protect an employee from violence, stalking, or harassment by another person).
If you are not sure what kind of restraining order you should get, talk to an  Orange County Divorce Attorney at the Law Office of Robert R. Beauchamp 24 hours a day, 7 days a week. What a restraining order CAN do
A restraining order is a court order. It can order the restrained person to:
            Not contact or go near you, your children, other relatives, or others who live with you;
            Stay away from your home, work, or your children’s schools;
            Move out of your house (even if you live together);
            Not have a gun;
            Follow child custody and visitation orders;
            Pay child support;
            Pay spousal or partner support (if you are married or domestic partners);
            Stay away from any of your pets;
            Pay certain bills; and
            Release or return certain property.
Once the court issues (makes) a restraining order, the order is entered into a statewide computer system (called CLETS) that all law enforcement officers have access to. And your restraining order works anywhere in the United States. If you move out of California, contact your new local police so they will know about your orders.
If you move to California with a restraining order from another state, or if you have a restraining order issued by a tribal court (in California or elsewhere in the U.S.), your restraining order will be valid anywhere in California and the police will enforce it. If you want your restraining order to be entered into California’s statewide domestic violence computer system, you can register your order with the court.  But keep in mind that you are not required to register your out-of-state or tribal court restraining order. A valid order is enforceable even if you do not register it.
What a restraining order CANNOT do
A restraining order cannot:
            End your marriage or domestic partnership. It is NOT a divorce.
            Establish parentage (paternity) of your children with the restrained person (if you are not married to, or in a domestic partnership with, him or her) UNLESS you and the restrained person agree to parentage of your child or children and agree to the court entering a judgment about parentage. Read and use Agreement and Judgment of Parentage (Form DV-180) to do this.
Effect of a restraining order on the restrained person
For the person to be restrained, the consequences of having a court order against him or her can be very severe.
            He or she will not be able to go to certain places or to do certain things.
            He or she might have to move out of his or her home.
            It may affect his or her ability to see his or her children.
            He or she will generally not be able to own a gun. (He or she will have to turn in or sell any firearms he or she has, and will not be able to buy a gun while the restraining order is in effect.)
            The restraining order may affect his or her immigration status. If you are worried about this, talk to an immigration lawyer to find out if you will be affected.
If the person to be restrained violates the restraining order, he or she may go to jail, or pay a fine, or both.
Types of Domestic Violence Restraining Orders
Emergency Protective Order (EPO)
An EPO is a type of restraining order that only law enforcement can ask for by calling a judge. Judges are available to issue EPOs 24 hours a day. So, a police officer that answers a domestic violence call can ask a judge for an emergency protective order at any time of the day or night.
The emergency protective order starts right away and can last up to 7 days. The judge can order the abusive person to leave the home and stay away from the victim and any children for up to a week. That gives the victim of the abuse enough time to go to court to file for a temporary restraining order.
To get an order that lasts longer than an EPO, you must ask the court for a temporary restraining order (also called a “TRO”).
Temporary Restraining Order (TRO)
When you go to court to ask for a domestic violence restraining order, you fill out paperwork where you tell the judge everything that has happened and why you need a restraining order. If the judge believes you need protection, he or she will give you a temporary restraining order.
Temporary restraining orders usually last between 20 and 25 days, until the court hearing date.
“Permanent” Restraining Order
When you go to court for the hearing that was scheduled for your TRO, the judge may issue a “permanent” restraining order. They are not really “permanent” because they usually last up to 3 years.
At the end of those 3 years (or whenever your order runs out), you can ask for a new restraining order so you remain protected.
Criminal Protective Order or “Stay-Away” Order
Sometimes, when there is a domestic violence incident (or series of incidents), the district attorney will file criminal charges against the abuser. This starts a criminal court case going. It is common for the criminal court to issue a criminal protective order against the defendant (the person who is committing the violence and abuse) while the criminal case is going on, and, if the defendant is found guilty or pleads guilty, for 3 years after the case is over.
The Restraining Order Process
When someone asks for a domestic violence restraining order in court, they have to file court forms telling the judge what orders they want and why. What happens after that varies a little from court to court, but the general steps in the court case are:
1.             The person wanting protection files court forms asking for the domestic violence restraining order. There is NO fee to file.
2.             The judge will decide whether or not to make the order by the next business day. Sometimes the judge decides sooner.
3.             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 paperwork. These temporary orders can include issues like:
            Ordering the restrained person to stay away and have no contact with the protected person (and other protected people and family pets);
            Child custody;
            Who can use the family home; or
            Who can use other property, like a car.
4.             The person asking for protection will have to “serve” the other person with a copy of all the restraining order papers before the court date. This means that someone 18 or older (NOT involved in the case) must hand-deliver a copy of all the papers to the restrained person.
5.             The restrained person has the right to file an answer to the restraining order request, explaining his or her side of the story.
6.             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 not be a restraining order.
            If the restrained person 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.
7.             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.
8.             If the judge also makes other orders in the restraining order, like child custody or child support orders, these orders will have different end dates and usually will last until the child turns 18 or a judge changes them.
Getting Help
You do not need a lawyer to ask for (or respond to) a restraining order. BUT it is a good idea to have a lawyer, especially if you have children.

The court process can be confusing and intimidating. Both people will have to see each other in court, and both will have to tell the judge details of what happened in a public courtroom. Having a lawyer or (for the protected person) support from domestic violence experts can help make the process easier to handle.
By: Robert R. Beauchamp
Robert Beauchamp
Law Office of Robert R Beauchamp
23120 Alicia Pkwy
Second Floor
Mission Viejo, CA 92692
Tel:  949-370-8000
Fax: 855-370-8100

Avvo Guide - Domestic Violence
Link to Orange County Superior Court Guide and Domestic Violence Forms


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