Many people think a restraining order is issued to stop something bad from happening. It isn't. Rather, a restraining order is to stop something bad from happening AGAIN. What does that mean? It helps to look at the difference between a law and a restraining order. A law protects everyone from bad acts done by anyone. A restraining order protects a specific person, the petitioner, from another specific person, the respondent. A judge may issue one of these emergency orders if a person has already violated the laws once or more, and there's good reason to fear it will happen again.
What Court Will I Be In?
Sonoma County deals with different types of law in different courts. There is a criminal court, a family court, a civil court, a drug court, a traffic court, etc. What many people don't know is that one incident can lead to cases in a couple of different courts. For example, suppose that Richard suspects his girlfriend Paula of cheating on him. When she gets home from work, he attacks her with a baseball bat. Paula is able to get to her car, and Richard smashes the windshield before she drives away. This incident can lead to a criminal case against Richard in the criminal court, a domestic violence case in the family court, and a small claims action for damage to the car in the small claims court. If you remember the O.J. Simpson case, he was tried for murder in the criminal court and found not guilty. But he was also charged with wrongful death in a civil court, found guilty, and ordered to pay restitution.
Types of Restraining Orders
(1) A domestic violence restraining order protects someone from an individual with whom they have had a very close relationship. It can be a family member, a husband/wife, a girlfriend/boyfriend, or even an ex. (2) A civil harassment restraining order protects someone from an individual when there hasn't been that close, intimate relationship. This could be a co-worker, a neighbor, or the new romantic partner of an ex. (3) Elder Abuse restraining orders can only be obtained by people aged 65 or over. These people are considered to be vulnerable by the courts. (4) Domestic Adult Abuse restraining orders can be obtained by people who have physical or mental conditions that prevent them from carrying out normal activities or protecting their rights. As with senior citizens, the court recognizes these people may be particularly vulnerable to abuse. The following sections are generally applicable, although DV cases may be handled somewhat differently.
Process, Part One
PREPARATION. (1) The party seeking protection fills out forms that generally includes a request for the order, a declaration, a notice of hearing, and a restraining order after hearing. (2) You will have to give the other party notice of what you're doing; a judge will rarely issue a restraining order if no notice was given. You can give notice by mail. (3) These papers are filed with the court. (4) The other party may, but does not have to, submit an answer to your request. If so, a copy must be sent to you.
Process, Part Two
ORDERS AND/OR HEARING. The judge will review your request and choose one of three options: (a) a hearing date is set in your matter AND you get a temporary order that lasts until then; or (b) a hearing date is set in your matter, but you do not get a temporary restraining order; or (c) you get neither a temporary restraining order nor a hearing. (This last option is extremely rare and means that the judge found your request to be completely without merit.) If you are given a hearing date, it will generally be within 1-2 weeks. With a notice of hearing and/or a temporary order, you must have the opposing party SERVED with the document(s). The order won't go into effect until the Sheriff's department has indicated service has occurred.
Process, Part Three
FIRST COURT DATE. Here are some of the issues that may crop up on the day of your hearing. (1) NO SERVICE. If your opposing party has not been served, you may ask for more time to achieve service. (2) NO APPEARANCE. If your opposing party was served, but does not appear, you may ask for a default judgment -- i.e., you get your restraining order on the spot. (3) NORMAL PROCEEDINGS. If service was achieved and everyone shows up, you will be ordered by the court to meet with a mediator. Usually, the mediator speaks to the petitioner first, then the respondent. The mediator will try to craft a solution that both parties agree to and that will remove the need for a trial. If mediation does not work, the parties simply tell the judge, who then schedules the matter for a "short cause" trial in the near future. If there was a temporary order, it is usually extended until the next court date.
Process, Part Four
SHORT-CAUSE CALENDAR. When you return to court, you will be ordered by the court to meet with a mediator -- again. Even if it didn't work the last time, you are required to step outside the courtroom and speak to the mediator again. If the two parties are still unable to reach an agreement, the judge will set the case for trial that very day. It may be right then and there, or it may be that afternoon. In either case, you must be ready for trial! Have all your evidence in hand; have your witnesses present; have an interpreter, if necessary; and be ready to pay for necessaries such as the cost of a court reporter. After both parties have presented their evidence, the judge will give his or her decision. The prevailing party may also request that the other side pay for costs and/or reasonable attorney's fees. If an order is granted, both parties stand by to receive copies of it, and it is effective immediately. Most orders last up to three years.
What Constitutes Grounds for A Restraining Order?
As explained in the Overview, a restraining order is to stop something bad from happening AGAIN. The judge will be asking, "what did this person do or say to make you afraid?" Usually, the grounds for a restraining order are (a) a physical attack or (b) a serious, credible threat of death or great bodily harm. Your petition will be more persuasive if the incident was SERIOUS and RECENT. If someone punched you in the stomach two months ago, and you are just now asking for protection, the delay makes it seem like you are not really afraid. If there was no attack or death threat, or if it was some time ago, the petitioner may have to show an ongoing pattern of behavior. Think of it as building a wall: you can do it with a few really large rocks, but if you don't have any big rocks, you'll have to have many, many pebbles.
What ISN'T Grounds for A Restraining Order?
Not all bad behavior is illegal, and the courts don't exist to arbitrate personal disputes. That's what marriage counselors, family therapists, friends and spiritual advisers are good for. If a person tells a boyfriend or girlfriend, "You are stupid and ugly; I hate you; I wish you were dead," that is NOT ILLEGAL. It is appalling behavior and grounds for re-considering that relationship. But it's not grounds for a restraining order. Words aren't treated the same as a physical assault, and "I wish you were dead" isn't a death threat. There is no restraining order to prevent against hurt feelings. Similarly, people generally have the right to go where they please. If someone drives down the petitioner's street, that is not "stalking." The law looks at that street as a public thoroughfare that anyone and everyone has access to; it wasn't "harassment" just to walk down your street.
What Can A Restraining Order Do (And Not Do)?
A restraining order may impose any or all of the following conditions on the respondent: refrain from physical abuse, stalking, and harassment; refrain from any kind of contact with petitioner, including mail or e-mail or texts; stay away from petitioner's home, job, car, and/or pets; move out from the petitioner's house; turn in or sell guns or firearms; refrain from third-party contact; not sell or get rid of marital property. A domestic violence order can also give petitioner emergency child custody. There are other orders that may be issued, as well; these are the most common. A restraining order will NOT be issued such that it prevents the respondent from getting to his/her own car, house, job, or place of worship, and it will not keep the respondent from generally going about in public. If an order is in effect and the two parties happen to bump into each other in a public place, whoever got there first will stay, and whoever got there second must leave.
Can I Do This Myself?
Many people request restraining orders "in pro per," which means they are self-represented. However, the greater the risk, the more important it is to understand the process and complete your papers correctly. A Legal Document Assistant can fill out the forms for you, but cannot tell you which forms you need and cannot give you legal advice. If you are income-eligible, Legal Aid of Sonoma County may be able to assist you free of charge, but cannot guarantee in-court representation. Often, hiring an experienced attorney is worth the investment when your safety is at risk.
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