"I’m going to get a restraining order!" We hear this phrase bandied about frequently. What kinds of restraining orders are there and how do you get one? The typical restraining order is the Domestic Violence Restraining Order which can be obtained against a person whom you are married to, were married to, live with, used to live with, are related to (even by adoption), are an in-law to, date, used to date, are engaged to, used to be engaged to, or are parents together of a child under the age of 18 years. In a Domestic Violence Restraining Order you can get orders that the other person: move out, stay away from you, not bother you, and not contact you. You can also get orders for child custody, child support, payment of debts, payment of attorneys fees, possession of property, payment of debts, and others. You must present detailed written evidence of the abuse that occurred, any injuries received, and why the orders requested are necessary. The restrained person will automatically be ordered to sell or turn in any firearms he or she owns or has possession of. If the facts presented are strong enough, the Judge will grant the order immediately to be effective until a hearing. This is called a Temporary Restraining Order (TRO). At the hearing the Judge can continue the orders. If a TRO is not granted on an emergency basis, the Judge can grant the Restraining Order at the hearing. After the hearing, the Restraining Orders will usually be granted for 3 years.
If things are really serious, you can call the police 24/7 to get an Emergency Protective Order (EPO) that will last for 5 court days or 7 calendar days. This gives you time to apply for a Domestic Violence Restraining Order. An EPO can be issued against the same persons as a Domestic Violence Restraining Order.
If the person you want the restraining order against is not one of the people listed above for a Domestic Violence Restraining Order, you can apply for a Civil Harassment Restraining Order. You must describe what your relationship is, such as landlord/tenant or neighbors. Upon presentation of sufficient facts, you can get orders that the person not bother you, not contact you, and stay away from you (and your residence, place of work, vehicle, etc.). If you want a TRO (issued before the hearing) you must state that you will suffer great and irreparable harm before hearing and explain why.
Remember, although a person may be restrained by a Court Order from bothering you, that does not stop them from violating the order. You must take precautions yourself commensurate with the threat potential. If the restrained person violates the order, they can be sentenced to jail time after they are apprehended.
Originally published in Carmel Valley Newsletter, reprinted with permission. Debra & William Crawford. Please e-mail questions or future column ideas to Debra@Divorce-123.com. This column is intended to be informative and thought provoking and is not to be relied upon as legal advice in any particular situation.
Family Law Attorney